EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of the 29th day of November, 2000,
between CONSECO FINANCE CORP., a Delaware corporation (hereinafter called the
"Company"), and Xxxxx X. Xxxxxxxxxx (hereinafter called "Executive").
RECITALS
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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 October 31,
2000. Subject to the provisions for termination as provided in Section 10
hereof, the term of this Agreement shall be the period beginning October 31,
2000, and ending December 31, 2003, and it shall be automatically renewed for an
additional one year period on January 1, 2004 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 January 1. If such an election
is made, this Agreement shall remain in full force and effect for the remaining
original term ending December 31, 2003, 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 December 31, 2003 or,
if this Agreement has been renewed, December 31, 2004.
3. Duties. Executive is engaged by the Company as its President and
Chief Executive Officer. Executive shall be subject to, and shall discharge his
executive duties in accordance with, the direction and control of the Board of
Directors of the Company (sometimes referred to herein as the "Board") and shall
report regarding the performance of his duties to the Board or the Chief
Executive Officer of Conseco, Inc. (the "Conseco Chairman") (provided that the
Company is then a subsidiary of Conseco).
4. Extent of Services. Executive, subject to the direction and control
of the Board, and if applicable, the Conseco Chairman, shall have the power and
authority commensurate with his status as the President and Chief Executive
Officer of the Company 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
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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,
educational or charitable organizations or from 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 Six
Hundred Thousand Dollars ($600,000) 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.
(b) In addition to Base Salary, Executive shall receive a bonus
determined as follows. For the calendar year ending December 31, 2000,
Executive shall receive a bonus of not less than Nine Hundred Thousand
Dollars ($900,000). For calendar years ending on or after December 31,
2001, during the Basic Employment Period, Executive shall receive a
bonus payable within 120 days of the end of the calendar year equal to
.20% of the Company's Pretax Income (as defined below) for such
calendar year. Such bonus shall be calculated from the books and
records of the Company which shall be kept in accordance with generally
accepted accounting principles applied by the Company in the
preparation of its financial statements. "Pretax Income" shall mean the
Company's net income available to common shareholders as adjusted to
add back income taxes (to the extent deducted in computing net income).
"Pretax Income" shall exclude the effect (in each case net of
applicable tax) of (i) extraordinary items, (ii) discontinued
operations and (iii) the cumulative effects of changes in accounting
principles. In making such calculation, the expenses of Conseco
allocated to the Company shall not exceed the percentage of the
Company's operating expenses that such allocated expenses represented
during calendar year 2000; provided, however, that if certain functions
of the Company's business that are currently being provided by the
Company are transferred in the future to Conseco or one of its other
subsidiaries, the expenses associated with such transferred function
shall be treated as allocated expenses only to the extent of any
increase in the expenses associated with such transferred functions.
(c) In the event that the Company sells a subsidiary or other
portion of its business (other than sales of assets in the ordinary
course of business or sales, including without limitation Vendor
Services, that were identified as "discontinued lines" in the Company's
Form 10-Q for the period ended September 30, 2000) or purchases a
company or portion of the assets or business of a company and the
business purchased or sold would constitute a "significant subsidiary"
of the Company under Regulation S-X of the Securities and Exchange
Commission as in effect on the date of this Agreement, the bonus
formula set forth in the previous paragraph shall be adjusted to
reflect such sale or purchase. In the event of
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such a sale, the bonus percentage in Section 5(b) shall be multiplied
by a fraction (i) the numerator of which is one plus the percentage of
the Company's net income which the subsidiary or business sold
represented of the total net income of the Company for the last two
full calendar years prior to such sale and (ii) the denominator of
which is one. In the event of such a purchase, the bonus percentage in
Section 5 (b) shall be multiplied by a fraction (i) the numerator of
which is one and (ii) the denominator of which is one plus the
percentage of the Company's net income which such company or business
would have represented for the last two years if the results of the
operations of such company or business had been included with that of
the Company during such period. No adjustment of the bonus shall be
made if the business that was purchased or sold had a net loss for the
two year period prior to its purchase or sale.
6. Fringe Benefits.
(a) Executive 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 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.
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
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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-quarter of the sum of his annual 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 unauthorized 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 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 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 (two years with respect to clauses (ii) and (iii) of this sentence)
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
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 in the manufactured housing industry (a "Competing
Business"); provided, however, that Executive may provide such services or have
such relationship with a Competing Business but only if Executive has no
involvement with the portion of the Competing Business that provides lending or
other financial products or services that are competitive with those products or
services of the Company relating to the manufactured housing industry; (ii)
solicit or attempt to convert to any other Competing Business, any customers of
the Company or any of its subsidiaries with respect to the manufactured housing
industry; or (iii) solicit for employment or employ any non-exempt employee of
Conseco, Inc. ("Conseco"), the
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Company or any of their respective subsidiaries. During the term of this
Agreement and for one year thereafter, Executive agrees not to engage in conduct
that is injurious to the Company, Conseco or any of their business operations.
For purposes of this provision, "conduct by Executive that is injurious to the
Company, Conseco or any of their business operations" is defined as: (i) any
statements, whether written or oral, which are defamatory of the Company,
Conseco or any of their officers or directors; or (ii) deliberate
misrepresentation of the affairs, practices, or financial condition of the
Company, Conseco or any of their officers or directors. 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. The
provisions of this Section 9 supersede any other agreements or documents to
which the Company and/or Executive are parties or signatories regarding the
subject matter of this Section 9, and such other agreements or documents shall
be of no force and effect with respect to the subject matter of this Section 9.
10. Termination; Change in Control.
(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 pursuant to Section 7.
(b) In the event (A) 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 and does not constitute a
Control Termination as defined in (e) below or (B) this Agreement is
terminated by Executive with "good reason", Executive shall be entitled
to receive (i) Executive's Base Salary, as determined pursuant to
Section 5(a) hereof, for a period of two years from the date of such
termination, (ii) an amount equal to the bonus paid or payable pursuant
to Section 5(b) with respect to the calendar year immediately preceding
the year of such termination, and (iii) all other unpaid amounts
previously accrued or awarded pursuant to any other provision of this
Agreement. For purposes of this Agreement "good reason" shall mean: (i)
causing or requiring Executive to report to anyone other than the Board
or the Chairman of the Board of Conseco, or (ii) requiring Executive's
primary work location to be at a place other than metropolitan St.
Louis, Missouri, or metropolitan Minneapolis/St. Xxxx, Minnesota.
(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 or is not a
termination by Executive for "good reason," 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) (i) In the event of a change in control of Conseco as defined in
(e) below and in exchange for Executive's Program Stock (as defined in
the Conseco, Inc. 2000 Employee
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Stock Purchase Program Work-Down Plan (the "2000 Plan")), Executive
shall be entitled to receive an amount equal to the greater of (a) the
purchase price of Executive's Program Stock plus all accrued but unpaid
interest on the Program Loans (as defined in the 2000 Plan)(excluding
accrued interest on the Interest Loans), or (b) the value of the total
consideration to be paid for Executive's Program Stock in any
transaction relating to such change in control of Conseco (as defined
below).
(ii) In the event of a Control Termination as defined in (e) below,
Executive shall be entitled to receive a lump sum payment not later
than 60 days following such Control Termination equal to the sum of (i)
two times the amount of Executive's Base Salary, as determined pursuant
to Section 5(a) hereof, (ii) an amount (the "Additional Payment") in
lieu of bonus to Executive with respect to the remainder of the term of
this Agreement, calculated as follows: (1) for calendar year 2001 -
$875,000, (2) for calendar year 2002 - $1,287,500, (3) for calendar
year 2003 - $1,700,000 and (4) for calendar year 2004 - $2,000,000, and
(iii) all other unpaid amounts previously accrued or awarded pursuant
to any other provision of this Agreement. The Additional Payment shall
be prorated based on the date of the Control Termination. For example,
if the Control Termination occurs on November 30, 2003, and assuming
neither party elected not to renew this Agreement under Section 2
hereof, then the Additional Payment would equal $2,000,000 + $144,383
($1,700,000 x 31 / 365). No Additional Payment with respect to calendar
year 2004 shall be made if the Company is obligated to make the payment
provided by Section 10(g) hereof.
(e) The term "Control Termination" as used herein shall mean (A)
termination of this Agreement by the Company in anticipation of or not
later than two years following a "change in control" (as defined
below), or (B) termination of this Agreement by Executive following a
"change in control" (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.
The term "change in control" shall mean (x) 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 Conseco representing 51% or more of the combined voting power
of the then outstanding securities of Conseco entitled to vote with respect to
the election of Conseco's Board of Directors or (y) the acquisition by any
person other than Conseco or an affiliate of Conseco 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.
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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
(e)(A) of this Section 10 shall be extended until the second anniversary of the
date such Change in Control Notice is given.
(f) For purposes of this Agreement "just cause" shall mean:
(i) a material breach by Executive of this Agreement, the
commission of gross negligence, or willful malfeasance,
misrepresentation 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 Conseco 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 or Conseco, their employees,
and products;
(iii) Executive's conviction by a court of law, or admission
that he is guilty, of a felony, intentional violation of a law
involving moral turpitude or theft or embezzlement of assets of the
Company or Conseco; or
(iv) Executive's failure to report to work other than on
approved vacation days or due to bona fide illness, bereavement or
similar family emergency, or the continued failure by Executive to
attempt in good faith to perform his duties as reasonably assigned
to Executive by the Company (such continued failure to continue for
a period of ten business days after notice given by the Company
after a written demand for such performance which specifically
identifies the manner in which it is alleged Employee has not
attempted in good faith to perform such duties).
(g) In the event the Company elects not to renew this Agreement for
an additional one year period as provided in Section 2 hereof and there
has been no Control Termination prior to the date of such election,
then the Company shall pay Executive the sum of Five Million Five
Hundred Thousand Dollars ($5,500,000) as compensation with respect to
calendar year 2004, such sum to be payable in equal installments on the
last business day of each calendar quarter during 2004.
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 Internal Revenue Code of 1986 (as
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amended the "Code"), or any successor provision (collectively, "Section
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.
(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
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(or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies 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 connection 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 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),
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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 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
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sufficient if in writing and if sent by certified or 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 relating to the
subject matter of this Agreement (other than the terms of a letter dated
November 21, 2000 from Executive and executed by Xxxx X. Xxxxx). 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CONSECO FINANCE CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
Senior Vice President, General
Counsel and Secretary
"Company"
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxxx
"Executive"
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