Exhibit 10.1.34
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 21st day of February,
2001, between CONSECO, INC., an Indiana corporation (hereinafter called the
"Company"), and Xxxxx Xxxxxx (hereinafter called "Employee").
RECITALS
WHEREAS, the services of Employee, 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 Employee 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 Employee and Employee hereby
accepts employment upon the terms and conditions hereinafter set forth.
2. Term. The effective date of this Agreement shall be March 13, 2001.
Subject to the provisions for termination as provided in Section 10 hereof, the
term of this Agreement shall be the period beginning March 13, 2001, and ending
March 13, 2006, and it shall be automatically renewed for successive two (2)
year periods on March 13, 2006 and each succeeding March 13 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 90 days prior to such March 13. If such
an election is made, this Agreement shall remain in full force and effect for
the remaining original term ending March 13, 2006 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 13, 2006 or, if this Agreement has been renewed, the 2-year period
relating to the last renewal.
3. Duties. Employee is engaged by the Company in the capacity of
Executive Vice President of Strategic Business Development. Employee 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. Employee's position with the Company shall be Executive Vice
President of Strategic Business Development, and such other positions as may be
determined from time to time by the Board.
4. Extent of Services. Employee, subject to the direction and control
of the Chief Executive Officer and the Board, shall have the power and authority
commensurate with his officer status and necessary to perform his duties
hereunder. The Company agrees to provide to Employee such assistance and work
accommodations as are suitable to the character of his positions with the
Company and adequate for the performance of his duties. Employee shall devote
his entire
employable time, attention and best efforts to the business of the Company, and
shall not, without the consent of the Company, during the term of his Agreement
be actively engaged in any other business activity, whether or not such business
activity is pursued for gain, profit or other pecuniary advantage; but this
shall not be construed as preventing Employee from serving on boards of
professional, community, civic, education, charitable and corporate
organizations on which he presently serves or may choose to serve or investing
his assets in such form or manner as will not require any services on the part
of Employee in the operation of the affairs of the companies in which such
investments are made. For purposes of this Agreement, full-time employment shall
be the normal work week for individuals in comparable officer positions with the
Company.
5. Compensation.
(a) As compensation for services hereunder rendered during the term
hereof, Employee shall receive a base salary ("Base Salary") of Three
Hundred Fifty Thousand Dollars ($350,000) per year payable in equal
installments in accordance with the Company's payroll procedure for its
salaried employees. Salary payments and other payments under this
Agreement shall be subject to withholding of taxes and other
appropriate and customary amounts. Employee and the Company shall
review the Base Salary on an annual basis, and Employee 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, Employee 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 Employee'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; provided,
however, that Employee shall receive a cash bonus of at least $281,918
for the period from March 13, 2001 through December 31, 2001.
(c) On the effective date of this Agreement, the Company shall
issue to Employee 50,000 shares of Restricted Stock. The restrictions
on the Restricted Stock shall lapse as to 20% of the shares on each of
March 13, 2002, March 13, 2003, March 13, 2004, March 13, 2005 and
March 13, 2006; provided, however, the restrictions shall lapse earlier
upon a "change in control" (as defined in Section 10) of the Company,
in the event this Agreement is terminated by the Company and such
termination is not for "just cause" (as defined in Section 10), upon
the death of Employee, upon a termination of this Agreement by the
Company pursuant to Section 7 or upon a termination by the Employee for
"good reason" (as defined in Section 10). Dividends, if any, on the
Restricted Stock will be paid to Employee as compensation during the
restriction period. Employee 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.
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(d) The Company shall grant to Employee a non-qualified stock
option (the "Initial Option") to purchase One Hundred Fifty Thousand
(150,000) shares of common stock at $13.32 per share, the average of
the high and low trading prices on the date of this Agreement. Such
stock option shall become exercisable in five increments of one-fifth
of the shares covered on March 13 in each of the years 2002, 2003,
2004, 2005, and 2006 and shall have a scheduled expiration date
(assuming continued employment) on the 10th anniversary of the
effective date of this Agreement; 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 as of the date
hereof, upon the death of Employee or upon a termination of this
Agreement by the Company pursuant to Section 7; provided, further, that
upon a termination (i) by the Company other than for "just cause," or
(ii) a termination by the Employee for "good reason," the Initial
Option shall become exercisable with respect to an additional 30,000
shares.
6. Fringe Benefits.
(a) Employee shall be entitled to participate in such existing
employee benefit plans and insurance programs offered by the Company,
or which it may adopt form 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
Employee a monthly automobile allowance in the amount of Six Hundred
Dollars ($600), and the Company shall pay directly or shall reimburse
Employee for the cost of fuel that he incurs in using his automobile.
(c) Employee shall be entitled to four (4) weeks vacation with
pay for each year during the term hereof.
(d) Employee may incur reasonable expenses for promoting the
Company's business, including expenses for entertainment, travel, and
similar items. The Company shall reimburse Employee for all such
reasonable expenses upon Employee's periodic presentation of an
itemized account of such expenditures.
(e) In order to perform his duties hereunder, the parties
acknowledge that Employee is required to change his permanent place of
residence (the "Current Residence") to a residence in Central Indiana
(the "Relocated Residence"). The Company shall pay all reasonable and
customary costs and expenses of Employee and his household connected
with their relocation to the Relocated Residence, including, without
limitation: (i) reasonable and customary moving expenses from the
Current Residence to the Relocated Residence including, without
limitation, costs of relocating Employee, his family, and their
household goods and personal effects; (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
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Residence and acquisition of the Relocated Residence; (iii) reasonable
and customary costs and expenses in connection with a reasonable number
of roundtrips to be taken by, and allocated among, Employee and his
spouse from the Current Residence to the Central Indiana area in order
to locate the Relocated Residence; and (iv) the monthly mortgage
payments on the Relocated Residence until the earlier of Employee's
sale of the Current Residence or September 13, 2001. The Company agrees
to pay Employee an additional amount to cover the incremental
additional United States income taxes incurred by Employee under the
Code with respect to payment or reimbursement of any expenses pursuant
to this subsection (e).
7. Disability. If Employee shall become physically or mentally disabled
during the term of this Agreement to the extent that his ability to perform his
duties and services hereunder is materially and adversely impaired, his Base
Salary, bonus and other compensation provided herein shall continue while he
remains employed by the Company; provided, that if such disability (as confirmed
by competent medical evidence) continues for at least nine (9) consecutive
months, the Company may terminate Employee's employment hereunder in which case
the Company shall immediately pay Employee a lump sum payment equal to
one-quarter of the sum of his annual Base Salary and bonus with respect to the
most recent fiscal year then ended and, provided further, that no such lump sum
payment shall be required if such disability arises primarily from: (a) chronic
depressive use of intoxicants, drugs or narcotics, or (b) intentionally
self-inflicted injury or intentionally self-induced sickness.
8. Disclosure of Information. Employee acknowledges that in and as a
result of his employment with the Company, he has been and will be making use
of, acquiring and/or adding to confidential information of the Company of a
special and unique nature and value. Upon the termination of this Agreement,
Employee shall return all materials obtained from or belonging to the Company
which he may have in his possession or control.
9. Covenants Against Competition and Solicitation. Employee
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 Employee for which the Company
has contracted hereunder, because of the confidential information to be obtained
by, or disclosed to, Employee as herein above set forth, and as a material
inducement to the Company to enter into this Agreement and to pay to Employee
the compensation stated in Section 5, as well as any additional benefits stated
herein, and other good and valuable consideration, Employee covenants and agrees
that throughout the period Employee remains employed hereunder and for one year
thereafter, Employee shall not, directly or indirectly, anywhere in the United
States of America (i) render any services, as an agent, independent contractor,
consultant or otherwise, or become employed or compensated by, any other
corporation, person or entity that derives a non-incidental portion of its
revenue from the business of selling or providing 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 that derives a
non-incidental portion of its revenue from the business of selling or providing
any lending or other financial products or services that are competitive with
the lending or other financial
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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 Employee in this Section 9 shall be void and unenforceable in the
event of (i) a termination by the Company other than for "just cause," (ii) a
Control Termination of this Agreement as defined in Section 10 below or (iii) a
termination by Employee for "good reason." 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 Employee 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 Employee may terminate this
Agreement at any time for any reason upon written notice to the other.
Subject to the first sentence of Section 10(b), an election not to
renew this Agreement pursuant to Section 2 shall not constitute a
termination of this Agreement. Employee may designate this Agreement as
having been terminated by the Company other than for "just cause" if
the Company requires Employee to relocate anywhere other than a county
location within (i) Xxxxxx County, Indiana, or its contiguous counties,
(ii) New York, (iii) Connecticut, or (iv) Florida. This Agreement shall
also terminate upon (i) the death of Employee or (ii) termination by
the Company after disability of Employee pursuant to Section 7.
(b) In the event that (i) this Agreement is terminated by the
Company and such termination is not pursuant to the last sentence of
(a) above or is not for "just cause" as defined in (e) below, (ii) this
Agreement is terminated by Employee or the Company and such termination
constitutes a Control Termination as defined in (d) below, (iii) there
is a "change in control" (as defined in this Section 10) within the
final two years of the initial term of this Agreement, and the Company
elects pursuant to Section 2 not to renew this Agreement beyond the
initial term, or (iv) this Agreement is terminated by Employee for
"good reason" as defined in (g) below, then Employee shall be entitled
to receive a lump sum amount equal to (x) two times Employee's Base
Salary as of the date of such termination, as determined pursuant to
Section 5(a) hereof, (y) the bonus payable pursuant to Section 5(b) for
the calendar year prior to such termination and (z) 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(c) shall fully vest as of the termination
date. In addition, in the event this Agreement is terminated by the
Company other than for "just cause" or by Employee and such termination
constitutes a Control Termination, as defined in (d) below, all of the
shares underlying the Initial Option provided for in Section 5(d) shall
fully vest as of the termination date. Upon any termination
of this Agreement other than one by the Company for "just cause" or by
Employee pursuant to the first sentence of Section 10(a), Employee
shall be entitled to the continuation of his medical and dental
benefits, as if an employee of the Company, for two years from the date
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of such termination.
(c) In the event this Agreement is terminated by the death of
Employee, is terminated by the Company for "just cause" as defined in
(e) below, or is terminated by Employee and such termination does not
constitute a Control Termination as defined in (d) below, Employee
shall be entitled to receive Employee'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 (x) death, (y) disability under Section 7 or (z) 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 Employee following "change in control" of the Company (as
defined below) upon the occurrence of any of the following events:
(i) a significant change not involving a promotion or
increase in the nature or scope of Employee'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 Employee that,
as a result of a change in circumstances significantly
affecting his position, he is unable to exercise Employee's
authorities, powers, functions or duties in existence
immediately prior to the change in control.
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
Employee 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.
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(f) For purposes of this Agreement "just cause" shall mean:
(i) a material breach by Employee of this Agreement or willful
malfeasance or fraud or dishonesty of a substantial nature in
performing Employee's services on behalf of the Company, which is
in each case (A) willful and deliberate on Employee's part and
committed in bad faith or without reasonable belief that such
breach is in the best interests of the Company and (B) not remedied
by Employee in a reasonable period of time after receipt of written
notice from the Company specifying such breach;
(ii) Employee's use of alcohol or drugs which interferes with
the performance of his duties hereunder or which compromises the
integrity and reputation of the Company, its employees, and
products;
(iii) Employee's conviction by a court of law, or admission
that he is guilty, of a felony or other crime involving moral
turpitude; or
(iv) Employee's absence from his employment other than as a
result of Section 7 hereof, for whatever cause, for a period of
more than one (1) month, without prior consent from the Company.
(g) Employee may terminate this Agreement at any time with "good
reason." For purposes of this Agreement "good reason" shall mean:
(i) a failure to nominate or elect Employee as Executive Vice
President of Strategic Business Development; or
(ii) a significant reduction in the nature or scope of
Employee's authority or duties from those contemplated by this
Agreement; or
(iii) causing or requiring Employee to report to anyone other
than the Chief Executive Officer or the Board; or
(iv) any other breach of any other material provision of this
Agreement by the Company which is not remedied by the Company
within forty-five (45) days after receipt of written notice from
Employee specifying such breach.
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
Employee, 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
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subject to the excise tax imposed by Section 4999 of the Code or any
successor provision (collectively, "Section 4999"), or any interest or
penalties are incurred by Employee 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
Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Employee 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, Employee 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 Employee within fifteen (15) business days of the receipt
of notice from Employee 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, Employee 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
Employee 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 Employee, it shall furnish Employee with a written opinion
that failure to report the Excise Tax on Employee'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 Employee. 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 Employee
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 Employee.
(c) Employee 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 Employee 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
Employee's rights under this Section 11 except to the extent the
Company is materially prejudiced thereby. Employee shall not pay such
claim prior to the
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expiration of the 30-day period following the date on which Employee
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 Employee in writing prior to the expiration of
such period that it desires to contest such claim, Employee 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 Employee 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 Employee to pay the tax claimed and xxx for a refund
or contest the claim in any permissible manner, and Employee 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 Employee to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to Employee on an interest-free basis and shall indemnify and hold
Employee 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
Employee 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 Employee 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.
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(d) If, after the receipt by Employee of an amount advanced by the
Company pursuant to Section 11(c), Employee becomes entitled to
receive, and receives, any refund with respect to such claim, Employee
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 Employee of an amount
advanced by the Company pursuant to Section 11(c), a determination is
made that Employee shall not be entitled to any refund with respect to
such claim and the Company does not notify Employee 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 Employee
upon any termination of this Agreement shall be considered severance pay in
consideration of past services rendered on behalf of the Company and his
continued service from the date hereof to the date he becomes entitled to such
payments. Employee shall have no duty to mitigate his damages by seeking other
employment and, should Employee 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 Employee and the third of whom shall be appointed by
the first two arbitrators. If the first two arbitrators cannot agree on
the appointment of a third arbitrator, then the third arbitrator shall
be appointed by the Chief Judge of the United States District Court for
the Southern District of Indiana. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association,
except with respect to the selection of arbitrators which shall be as
provided in this Section. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. In
the event that it shall be necessary or desirable for Employee to
retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any and all of his rights under this
Agreement, the Company shall pay (or Employee shall be entitled to
recover from the Company, as the case may be) his reasonable attorneys'
fees and costs and expenses in connection with the enforcement of any
arbitration award in court, regardless of the final outcome, unless the
arbitrators shall determine that under the circumstances recovery by
Employee of all or a part of any such fees and costs and expenses would
be unjust.
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(b) Employee acknowledges that a breach or threatened breach by
Employee of 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 Employee agree that the Company may seek and obtain
injunctive relief, including, without limitation, temporary restraining
orders, preliminary injunctions and/or permanent injunctions, in a
court of proper jurisdiction to restrain or prohibit a breach or
threatened breach of Section 8 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 Employee.
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 Employee, 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 (including, without limitation,
Employee's estate, heirs and personal representatives) and shall be construed in
accordance with and governed by the laws of the State of Indiana. This Agreement
is personal to each of the parties hereto, and neither party may assign nor
delegate any of its rights or obligations hereunder without the prior written
consent of the other.
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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/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
"Employee"
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