Exhibit 10.29
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of the 1st day of April, 2006 is
between Conseco Services, LLC, an Indiana limited liability company ("Company"),
and Xxxxxx X. Xxxxxxx ("Executive").
WHEREAS, the services of Executive and his managerial and professional
experience are of value to the Company.
WHEREAS, the Company desires to have the benefit and advantage of the
services of Executive to assist the Company and Conseco, Inc. ("Conseco") 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 December 31, 2007. As used in this Agreement, the "Term" is
the period ending on December 31, 2007. 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, General Counsel and Secretary of
Conseco. Executive's primary office shall be at the Company's offices in either
Chicago, Illinois or Carmel, Indiana. After commencement
of his employment, Executive and the Company shall agree upon the location of
his principal office. Executive acknowledges that the performance of his duties
will require travel on a regular basis to the Company's other offices as well as
to other locations for Company business.
4. Extent of Services. During the Term, 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 Conseco 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
non-solicitation 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 Three
Hundred Thousand Dollars ($300,000) 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 50% of Executive's Base Salary (the "Target
Bonus") and a maximum annual bonus of 100% 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. Executive's 2006 bonus payable pursuant to this
paragraph in 2007 shall be prorated based on the number of days that
Executive was employed by the Company in 2006. Notwithstanding the
above, the 2007 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 will be based
on financial and other objective targets that the Company believes are
reasonably attainable at the time that they are set.
(c) As soon as reasonably practicable, Executive will receive an
award of options to purchase 25,000 shares of Conseco common stock
with an exercise price equal to the fair market value on the date of
the grant and an award of 10,000 shares of performance 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. The performance restricted stock will be based on
performance measures to be agreed upon by the President of Conseco and
the Human Resources and Compensation Committee of the Board of
Directors of Conseco. Executive shall also be eligible to participate
in and receive future 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 of
Directors of Conseco (the "Board").
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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 presentation of an itemized
account of such expenditures.
(d) Executive shall be entitled to reimbursement of relocation
expenses for moving his family to Chicago, Illinois or
Carmel, Indiana (as determined pursuant to Section 3 of
this Agreement) in accordance with the Company's relocation policy;
provided that his relocation has been completed by the date to be
agreed upon by the Company and Executive. Executive agrees to repay
such amount to the Company if his employment is terminated for Just
Cause (as such term is defined in Section 10(b) of this Agreement) or
if he terminates his employment other than With Reason (as defined on
Section 10(d) of this Agreement) prior to March 31, 2007.
(e) The Company shall reimburse Executive for, or provide at its
expense, (i) up to six months of temporary housing in Chicago,
Illinois at a location selected by the Company and (ii) two round
trip airline tickets per month between Chicago or Indianapolis
and Minneapolis - St. Xxxx. Executive shall be entitled
to a 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 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 and (ii) a pro-rata portion of the Target Bonus
for the year in which his 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)
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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 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 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 hereunder and for one year
thereafter, Executive shall not, directly or indirectly, anywhere in the United
States of America (i) 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 (ii) 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
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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 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 or Conseco, 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 member of the Board or 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
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its successor) of Executive's employment for any reason within six
months in anticipation of or within two years following a Change in
Control.
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 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) At Executive's option, he may terminate employment with the
Company "With Reason" provided one or more of the following conditions
are met: (i) his role or duties have been materially diminished by
changes in responsibilities or authority; (ii) any reduction in
Executive's Base Salary or Target Bonus; or (iii) there is a "Change
in Control" of the Company as defined in Section 10(c) and, following
Executive's written request made prior to the Change in Control, the
ultimate parent entity or entities directly or indirectly gaining
control of a majority of the Board or outstanding securities entitled
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to vote with respect to the Board fails to affirm and guarantee the
Company's current and future obligations under this Agreement.
(e) 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 that Executive's employment is terminated by the
Company for Just Cause (as defined herein), upon expiration of the
Term of this Agreement or 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 unvested restricted
stock held by Executive on the date of termination for Just Cause
shall be forfeited.
(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 and (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 expiration of the Term.
(c) In the event that Executive is terminated by the Company
without Just Cause (and other than expiration of the Term, death,
disability or a Control Termination) or by Executive With Reason, 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 (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 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.
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.
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(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.
(g) Notwithstanding the foregoing timing provisions of Section
11(c) of this Agreement, no payments otherwise due Executive pursuant
to Section 11(c) shall be due or paid to Executive until after the
expiration of six months following the date of termination if an
earlier obligation or payment would fail to meet or fail to operate in
accordance with paragraphs (2), (3) or (4) of Section 409A of the
Internal Revenue Code.
12. 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.
13. 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
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and binding obligation 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.
14. 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, (unless Executive's principal office is in
Chicago, Illinois, in which case the binding arbitration shall be in
Chicago, Illinois), 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 (or the Chief Judge of the
United States District Court for the Northern District of Illinois if
the arbitration is in Chicago). 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; provided, however, that the Company
shall pay or reimburse Executive for such costs and expenses,
including reasonable attorney fees, if Executive prevails in such
proceedings.
(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
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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.
15. 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
President, in the case of the Company.
16. 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.
17. Entire Agreement. Other than any equity award agreements entered
into pursuant to an applicable long-term 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. 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, 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.
18. 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.
19. 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 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 the Delaware General Corporation 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
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thereof) was authorized by the Board. 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
the Delaware General Corporation 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.
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. 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 SERVICES, LLC
/s/Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President
EXECUTIVE:
/s/Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
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Exhibit A
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None.
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