Exhibit 10.1.36
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 16th day of March, 2001,
between CONSECO, INC., an Indiana corporation ("Company"), and Xxxxxxx X. Xxxxxx
("Executive").
RECITALS
WHEREAS, the services of Executive, and his managerial and professional
experience, are of great value to the Company;
WHEREAS, the Company deems it to be essential for it to have the
benefit and advantage of the services of the Executive for an extended period;
and
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, 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 shall be March 16, 2001
(the "Effective Date"). Subject to the provisions for termination as provided in
Section 10 hereof, the term of this Agreement shall be the period beginning
March 16, 2001, and ending March 15, 2004, and it shall be automatically renewed
for successive two (2) year periods commencing on March 16, 2004 and every other
March 16 thereafter unless either party elects not to renew this Agreement by
serving written notice of such intention not to renew on the other party at
least 180 days prior to such March 16. If such an election is made, this
Agreement shall remain in full force and effect for the remaining original term
ending March 15, 2004 or, if this Agreement has been renewed, the remainder of
the renewal period relating to the last such renewal, subject to the provisions
for termination as provided in Section 10 hereof. The Basic Employment Period as
used in this Agreement shall mean the original term ending March 15, 2004 or, if
this Agreement has been renewed, the 2-year period relating to the last renewal.
3. Duties. Executive is engaged by the Company in an executive capacity
as its chief financial officer. Executive shall report to the Chief Executive
Officer regarding the performance of his duties and shall be subject to the
direction and control of the Board of Directors of the Company (sometimes
referred to herein as the "Board") and the Chief Executive Officer. Executive's
position with the Company shall be Executive Vice President and Chief Financial
Officer, and such other positions as may be determined from time to time by the
Board. At the first meeting of the Board following the commencement of his
employment, Executive shall be elected as a member of the Board, and it is
contemplated that, in connection with each annual meeting of shareholders of the
Company thereafter during the term hereof, at which Executive's term as a
director expires, the Board will nominate Executive for election as a member of
the Board.
4. Extent of Services. Executive, subject to the direction and control
of the Chief Executive Officer and the Board, shall have the power and authority
commensurate with his executive status and necessary to perform his duties
hereunder. The Company agrees to provide to Executive 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. Executive 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
this 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 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. For purposes of this Agreement, full- time employment
shall be the normal work week for individuals in comparable executive positions
with the Company.
5. Compensation.
(a) As compensation for services hereunder rendered during the term
hereof, Executive shall receive a base salary ("Base Salary") of Seven
Hundred Thousand Dollars ($700,000) 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. Executive may receive increases in
his Base Salary from time to time, based upon his performance in his
executive and management capacity. The amounts of any such salary
increases shall be approved by the Board or the Compensation Committee
of the Board upon the recommendation of the Chief Executive Officer.
(b) In addition to Base Salary, Executive may receive such other
bonuses or incentive compensation as the Compensation Committee or the
Board may approve from time to time, upon the recommendation of the
Chief Executive Officer, with a target equal to one times Executive's
Base Salary then in effect (the "Target Bonus), but not in excess of
two times his Base Salary with respect to any calendar year.
(c) Executive shall also receive a signing bonus of One Million
Dollars ($1,000,000), payable on the first salary payment date
following the commencement of employment. If Executive voluntarily
terminates his employment with the Company prior to the first
anniversary of the date of this Agreement, he will immediately pay the
Company a pro rata portion of such signing bonus (based on the portion
of the 1-year period remaining after the date of such termination of
employment).
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(d) On the effective date of this Agreement, the Company shall issue
to Executive five hundred thousand (500,000) shares of Restricted
Stock, which restrictions shall lapse (A) as to one third of the shares
if Executive remains an employee of the Company through the first
anniversary of the date of this Agreement, (B) as to an additional
one-third of the shares if Executive remains an employee of the Company
through the second anniversary of the date of this Agreement, and (C)
as to the remaining shares if Executive remains an employee through the
third anniversary of the date of this Agreement; however, the
restrictions shall lapse earlier upon a "change in control" (as defined
in Section 10) of the Company or in the event this Agreement is
terminated by the Company and such termination is not pursuant to the
last sentence of Section 10(a) or for "just cause" (as defined in
Section 10). Dividends, if any, on the Restricted Stock will be paid to
Executive as compensation during the restriction period. Executive
agrees that he will notify the Company if he makes the election
provided for in Section 83(b) of the Internal Revenue Code of 1986, as
amended (the "Code"), with respect to the Restricted Stock. The award
of Restricted Stock shall be on such other terms and conditions
contained in the Restricted Stock Agreement in the form attached hereto
as Annex 1.
(e) The Company shall grant to Executive a non-qualified stock
option (the "Initial Option") to purchase One Million (1,000,000)
shares of common stock of the Company at $13.885 per share of common
stock. Twenty percent (20%) of the shares underlying the Initial Option
shall vest immediately but shall not be exercisable prior to March 16,
2003, and the balance shall vest in four equal annual increments of
twenty percent (20%) each commencing March 16, 2002 and continuing each
March 16 thereafter through March 16, 2005; provided, however, that the
Initial Option shall vest in full upon a "change in control" of the
Company as defined in the Non-Qualified Stock Option Agreement
governing the terms and conditions of the Initial Option and in the
form attached hereto as Annex 2. The Initial Option shall have a
scheduled expiration date (assuming continued employment) on the 10th
anniversary date of this Agreement.
(f) The Company shall provide Executive with a nonqualified
supplemental retirement benefit (the "Supplemental Retirement Benefit")
provided for in this subsection. The Supplemental Retirement Benefit
shall provide for annual payments in an amount equal to Five Hundred
Thousand Dollars ($500,000) per year to be made to Executive or his
beneficiary commencing when Executive attains age 65 and terminating
upon the death of Executive. The Supplemental Retirement Benefit shall
be fully vested (A) on March 16, 2004, if Executive remains an employee
of the Company through March 15, 2004, or (B) upon a "change in
control" (as defined in Section 10 of this Agreement) of the Company.
Notwithstanding any provision of this Agreement to the contrary, the
Supplemental Retirement Benefit shall not be reduced, suspended or
otherwise
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affected as a result of any termination of Executive's employment under
this Agreement after March 15, 2004.
6. Fringe Benefits.
(a) Executive shall be entitled to participate in such existing
employee benefit plans (including, but not limited to, annual option
grants, if any, under stock option plans of the Company) 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 employee benefit plans or programs,
or employee fringe benefits, it may adopt from time to time.
(b) During the term of this Agreement, the Company shall pay
Executive a monthly automobile allowance in the amount of Six Hundred
Dollars ($600), and the Company shall pay directly or shall reimburse
Executive for the cost of fuel that he incurs in using his automobile.
(c) Executive shall be entitled to four (4) weeks vacation with pay
for each year during the term hereof.
(d) 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.
(e) The Company shall, upon periodic presentation of satisfactory
evidence and to a maximum of Ten Thousand Dollars ($10,000) per each
year of this Agreement, reimburse Executive for reasonable medical
expenses incurred by Executive and his dependents which are not
otherwise covered by health insurance provided to Executive under
Section 6(a).
(f) During the term of this Agreement, the Company shall at its
expense maintain a term life insurance policy or policies on the life
of Executive in the face amount of Five Hundred Thousand Dollars
($500,000), payable to such beneficiaries as Executive may designate.
(g) The parties acknowledge that, to perform his duties hereunder,
Executive is required to relocate his permanent place of residence to
Central Indiana (the "Relocated Residence"). The Company shall pay all
reasonable and customary costs and expenses of Executive and his
household connected with their relocation to the Relocated Residence,
including, without limitation:
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(i) reasonable and customary moving expenses, (ii) reasonable and
customary real estate broker and attorneys' fees and other closing
costs related to the sale, sublease or other disposition of his current
residence and the acquisition of the Relocated Residence; and (iii)
reasonable and customary costs and expenses in connection with a
reasonable number of round trips to be taken by, and allocated among,
Executive and his spouse to the Central Indiana area to locate the
Relocated Residence.
7. Disability. If Executive 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 Executive's employment hereunder
in which case the Company shall immediately pay Executive a lump sum payment
equal to one-half 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 arises primarily from: (a)
chronic depressive use of intoxicants, drugs or narcotics, or (b) intentionally
self- inflicted injury or intentionally self-induced sickness; or (c) a proven
unlawful act or enterprise on the part of Executive.
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 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 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, 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, provided that Executive gives
prompt notice of such requirement to the Company to enable the Company to seek
an appropriate protective order or confidential treatment, or (c) is necessary
to perform properly Executive's duties under this Agreement. Upon the
termination of this Agreement, Executive shall return all materials obtained
from or belonging to the Company 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 are of a special
and unusual character, with a unique value to the Company, the loss of which
cannot
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adequately be compensated by damages or an action at law. In view of the unique
value to the Company 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 herein above set forth, and 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, and other good and valuable consideration, Executive covenants and
agrees that throughout the period Executive remains employed 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 engaged in the business of selling or
providing life, accident or health insurance products or services; (ii) render
any services, as an agent, independent contractor, consultant or otherwise, or
become employed or compensated by, any other corporation, person or entity
engaged in the business of selling or providing any lending or other financial
products or services that are competitive with the lending or other financial
products or services sold or provided by the Company or its subsidiaries, (iii)
in any manner compete with the Company or any of its subsidiaries; (iv) solicit
or attempt to convert to other insurance carriers, finance companies or other
corporations, persons or other entities providing these same or similar products
or services provided by the Company and its subsidiaries, any customers or
policyholders of the Company, or any of its subsidiaries; or (v) solicit for
employment or employ any employee of the Company or any of its subsidiaries. The
covenants of Executive in this Section 9 shall be void and unenforceable in the
event of a Control Termination of this Agreement as defined in Section 10 below.
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 this Agreement at
any time for any reason upon written notice to the other. This
Agreement shall also terminate upon (i) the death of Executive or (ii)
termination by the Company after disability of Executive pursuant to
Section 7.
(b) In the event 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 (f) below or such termination
constitutes a Control Termination as defined in (e) below, Executive
shall be entitled to receive an
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amount equal to (i) two times Executive's Base Salary as of the date of
such termination, as determined pursuant to Section 5(a) hereof, (ii)
the bonus payable pursuant to Section 5(b) for the calendar year prior
to such termination (such annual bonus shall be deemed to be $700,000
if the termination occurs prior to January 1, 2002), and (iii) all
other unpaid amounts previously accrued or awarded pursuant to any
other provision of this Agreement; and, in addition, the award of
Restricted Stock provided for in Section 5(d) and the Supplemental
Retirement Benefit shall fully vest as of the termination date. In
addition, in the event this Agreement is terminated by the Company or
by Executive and such termination constitutes a Control Termination, as
defined in (f) below, all of the shares underlying the Initial Option
provided for in Section 5(e) shall fully vest as of the termination
date.
(c) In the event this Agreement is terminated by the death of
Executive, is terminated by the Company for "just cause" as defined in
(f) below, or is terminated by Executive and such termination does not
constitute a Control Termination as defined in (e) below, Executive
shall be entitled to receive Executive's Base Salary as provided in
Section 5(a) accrued but unpaid as of the date of termination, and all
other unpaid amounts previously accrued or awarded pursuant to any
other provision of this Agreement.
(d) The term "Control Termination" as used herein shall mean
(A) termination of this Agreement by the Company for any reason, other
than death, disability under Section 7, or for "just cause," in
anticipation of or not later than two years following a "change in
control" of the Company (as defined below), or (B) termination of this
Agreement by Executive following "change in control" of the Company (as
defined below) upon the occurrence of any of the following events:
(i) a significant reduction in the nature or scope of
Executive's authorities or duties from those in existence
immediately prior to the change in control, a reduction in his
total compensation from that in existence immediately prior to the
change in control or a breach by the Company of any other provision
of this Agreement; or
(ii) the reasonable determination by Executive that, as a
result of a change in circumstances significantly affecting his
position, he is unable to exercise Executive's authorities, powers,
functions or duties in existence immediately prior to the change in
control, or
(iii) the Company's principal executive offices are moved
outside the geographic area comprised of Xxxxxx County, Indiana,
and the seven contiguous counties or Executive is required to work
at a location other than the Company's principal executive offices.
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The term "change in control" shall mean the acquisition 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 representing 51% or more of the combined voting power of
the then outstanding securities of the Company entitled to vote with
respect to the election of the Company's Board of Directors.
Upon the occurrence of a change in control, the Company shall
promptly notify Executive in writing of the occurrence of such event
(such notice, the "Change in Control Notice"). If the Change in Control
Notice is not given within 10 days after the occurrence of a change in
control the period specified in clause (d)(A) of this Section 10 shall
be extended until the second anniversary of the date such Change in
Control Notice is given.
(e) For purposes of this Agreement "just cause" shall mean:
(i) a material breach by Executive of this Agreement, or
willful malfeasance or fraud or dishonesty of a substantial nature
in performing Executive's services on behalf of the Company, which
is in each case (A) willful and deliberate on Executive's part and
committed in bad faith or without reasonable belief that such
breach is in the best interests of the Company and (B) not remedied
by Executive in a reasonable period of time after receipt of
written notice from the Company specifying such breach;
(ii) Executive'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) Executive's conviction by a court of law, or admission
that he is guilty, of a felony or other crime involving moral
turpitude; or
(iv) Executive'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 written consent from the
Company.
The Company may not terminate Executive's employment for "just
cause" unless:
(i) the Company provides Executive with at least thirty (30)
days advance written notice (the "Notice of Consideration") of its
intent to consider termination of Executive's employment for "just
cause," including a
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description of the specific reasons which form the basis for such
consideration;
(ii) for a period of not less than fifteen (15) days after the
date Notice of Consideration is provided, Executive shall have the
opportunity to appear before the Board, with or without legal
representation, at Executive's election, to present arguments and
evidence on his own behalf; and
(iii) following the presentation to the Board as provided in
(ii) above or Executive's failure to appear before the Board at a
date and time specified in the Notice of Consideration (which date
shall not be less than fifteen (15) days after the date the Notice
of Consideration is provided), Executive may be terminated for
"just cause" only if the Board, by the affirmative vote of all of
its members (excluding Executive), determines that the actions or
inactions of Executive specified in the Notice of Consideration
occurred, that such actions or inactions constitute "just cause,"
and that Executive's employment should be terminated for "just
cause."
Unless the Company complies with the requirements of this subsection (e), any
termination of employment shall be deemed a termination by the Company without
"just cause." After providing a Notice of Consideration pursuant to the
provision of this subsection (e), the Board may, by the affirmative vote of all
of its members (excluding Executive), suspend Executive with pay until a final
determination pursuant to this subsection has been made.
11. Tax Indemnity Payments.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by
the Company or its affiliated companies to or for the benefit of
Executive, whether paid or payable or distributed or distributable
pursuant to the terms of the Agreement or otherwise but determined
without regard to any additional payments required under this Section
11 (a "Payment"), would be subject to the excise tax imposed by Section
4999 of the Code or any successor provision (collectively, ASection
4999"), or any interest or penalties are incurred by Executive with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any
Federal, state or local income and employment taxes and Excise Tax (and
any interest and penalties imposed with respect to any such taxes)
imposed upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
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(b) Subject to the provisions of Section 11(c), all determinations
required to be made under this Section 11, including whether and when a
Gross- Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination,
shall be made by the Company's public accounting firm (the "Accounting
Firm") which shall provide detailed supporting calculations both to the
Company and Executive within fifteen (15) business days of the receipt
of notice from Executive that there has been a Payment, or such earlier
time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or
group effecting the Change in Control, Executive may appoint another
nationally recognized public accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as
the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 11, shall be paid by the Company to
Executive within five (5) days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is
payable by Executive, it shall furnish Executive with a written opinion
that failure to report the Excise Tax on Executive's applicable federal
income tax return would not result in the imposition of a negligence or
similar penalty. Any determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the uncertainty
in the application of Section 4999 at the time of the initial
determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should
have been made by the Company ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 11(c) and Executive
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive.
(c) Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require a payment
by the Company, or a change in the amount of the payment by the Company
of, the Gross-Up Payment. Such notification shall be given as soon as
practicable after Executive is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid; provided that the failure to
give any notice pursuant to this Section 11(c) shall not impair
Executive's rights under this Section 11 except to the extent the
Company is materially prejudiced thereby. Executive shall not pay such
claim prior to the expiration of the 30-day period following the date
on which Executive gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies
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Executive in writing prior to the expiration of such period that it
desires to contest such claim, Executive shall:
(1) give the Company any information reasonably requested by
the Company relating to such claim,
(2) take such action in connectio with contesting such claim as
the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(3) cooperate with the Company in good faith in order
effectively to contest such claim, and
(4) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest
and shall indemnify and hold Executive harmless, on an after-tax
basis, for any Excise Tax or income, employment or other tax
(including interest and penalties with respect thereto) imposed as
a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section
11(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct Executive to pay the tax
claimed and xxx for a refund or contest the claim in any
permissible manner, and Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided further, that if the Company
directs Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to Executive on an
interest-free basis and shall indemnify and hold Executive
harmless, on an after-tax basis, from any Excise Tax or income,
employment or other tax (including interest or penalties with
respect to any such taxes) imposed with respect to such advance or
with respect to any imputed income with respect to such advance;
and provided further, that any extension of the statute of
limitations relating to payment of taxes for the taxable year of
Executive with respect to which such contested amount is claimed to
be due is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and
Executive
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shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 11(c), Executive becomes entitled to
receive, and receives, any refund with respect to such claim, Executive
shall (subject to the Company's complying with the requirements of
Section 11(c)) promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 11(c), a determination is
made that Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify Executive in writing of its
intent to contest such denial of refund prior to the expiration of
thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
12. Character of Termination Payments. The amounts payable to Executive
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. 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.
13. 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 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. In
the event that it shall be necessary or desirable for Executive 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 Executive 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
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enforcement of any arbitration award in court, regardless of the final
outcome, unless the arbitrators shall determine that under the
circumstances recovery by Executive of all or a part of any such fees
and costs and expenses would be unjust.
(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.
14. 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 Chief
Executive Officer, in the case of the Company.
15. 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.
16. 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.
17. 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 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CONSECO, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------
Xxxx X. Xxxxx
Chairman of the Board
"Company"
/s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
"Executive"
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