Exhibit 10.28
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of the 1st day of
October, 2008, is between Conseco Services, LLC, an Indiana limited liability
company ("Company"), and Xxxxx X. Xxxxx ("Executive").
WHEREAS, the Company and Executive entered into an Employment Agreement
dated as of October 1, 2004, and an Amendment thereto dated December 18, 2006,
and they now desire to amend and restate such agreement.
WHEREAS, the continued 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 September 30, 2010 (the "Term"). The Term shall not be automatically
renewed and shall end upon any earlier termination of Executive's employment
with the Company.
3. Duties. During the Term, Executive shall be engaged by the Company in
the capacity of President, Bankers Life and Casualty Company, or in such other
senior executive capacity as the Chief Executive Officer of Conseco shall
specify. Executive shall report to the Chief Executive Officer of Conseco or
such other senior executive officer as the Chief Executive Officer of Conseco
may specify regarding the performance of his duties.
4. Extent of Services. During the Term, subject to the direction and
control of the Chief Executive Officer of Conseco, 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, 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 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-competition and non-solicitation provisions of Section 9 hereof);
provided, however, that corporate organizations shall be limited to those
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 Four
Hundred Forty-One Thousand Dollars ($441,000) 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 100% of Executive's Base Salary (the "Target Bonus") and a
maximum annual bonus of 200% 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 but in no event later than
March 15 of the year following the year with respect to which such bonus
was payable, unless the bonus amounts to be paid cannot be confirmed and
paid on or before March 15, in which event the bonuses will be paid within
15 days after the bonus amounts have been confirmed by the Company. For
purposes of clarification, annual executive bonuses are payable on or
before March 15 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.
Notwithstanding the above, a pro-rata portion of the 2010 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
performance requirements for Target Bonuses will be based on financial and
other objective targets that the Conseco Board of Directors (the "Board")
or the Human Resources and Compensation Committee of the Board (the
"Compensation Committee") believes are reasonably attainable at the time
that they are set.
(c) Executive shall be eligible to participate in and receive future
grants under any Conseco stock or equity-based program offered to senior
executives, subject to the discretion of the Board or the Compensation
Committee.
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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 periodic presentation of an itemized
account of such expenditures in accordance with the Company's policies and
procedures; provided, however, that any such reimbursement will be made no
later than March 15 of the year following the year in which the expense was
incurred. The Company agrees to pay Executive an additional amount to cover
the incremental additional income taxes incurred by Executive, if any, with
respect to payment or reimbursement of any reasonable business expenses
pursuant to this subsection (c); provided, however, that any such payment
will be made no later than March 15 of the year following the year in which
the income tax was incurred.
(d) Executive shall be permitted to make elective contributions to any
Company-sponsored, non-qualified deferred compensation plan in accordance
with the terms of such plan.
7. Disability.
(a) 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 determined in the
Company's reasonable judgment, exercised in good faith) continues for at
least three (3) consecutive months, the Company may terminate Executive's
employment hereunder, in which case the Company within 10 business days
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 ("Unpaid Salary"), (ii) the bonus payable pursuant to
Section 5(b) for the fiscal year of the Company ending prior to the date of
termination (to the extent earned based on performance under the goals and
objectives of the applicable plan but not previously paid) ("Unpaid
Bonus"), (iii) Executive's then accrued but unused vacation ("Unpaid
Vacation") (the Unpaid Salary, Unpaid Bonus and Unpaid Vacation referred to
sometimes together as the "Accrued Amounts") and (iv) a pro-rata portion of
the Target Bonus for the year in which the termination for disability
occurs. All options, restricted stock and/or other awards held by Executive
on the date of termination for disability shall vest only through the date
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of termination according to the normal vesting schedule applicable to such
options or restricted stock and Executive shall be treated in accordance
with the applicable award agreements.
(b) No payments or vesting under this Section 7 will be made if such
disability arose primarily from (a) 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, (c) must be disclosed
to enable Executive properly to perform his duties under this Agreement or (d)
was developed by Executive prior to his employment by the Company. 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 Competition and 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) 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
annuity,
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life, accident or health insurance products or services; (ii) in any manner
compete with the Company or any of its affiliates with respect to lines of
business that the Company and its affiliates derive more than a non-incidental
portion of their revenue from or with respect to which the Company and its
affiliates have made a significant investment in; (iii) 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 (iv) solicit for employment or employ any individual who
was employed by the Company or any of its affiliates during the term of
Executive's employment with the Company. Should any particular covenant or
provision of this Section 9 be held unreasonable or contrary to public policy
for any reason, including, without limitation, the time period, geographical
area, or scope of activity covered by any restrictive covenant or provision, the
Company and Executive acknowledge and agree that such covenant or provision
shall automatically be deemed modified such that the contested covenant or
provision shall have the closest effect permitted by applicable law to the
original form and shall be given effect and enforced as so modified to whatever
extent would be reasonable and enforceable under applicable law.
10. Termination. During the Term:
(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) material breach by Executive of this Agreement not cured
within 15 days after written notice to Executive by the Company, (B) a
material breach of Executive's duty of loyalty to the Company or its
affiliates not cured within 15 days after written notice to Executive
by the Company, 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;
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(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 three (3) consecutive days, without consent
from the Company prior to the expiration of the three (3) day period;
(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; or
(vi) Any intentional wrongful act or omission by Executive that
results in the restatement of Conseco's financial statements due to a
violation of the Xxxxxxxx-Xxxxx Act of 2002.
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 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 or the board
of directors of Conseco's 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
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commencement of such election contest, as the case may be) cease to
constitute at least a majority of the Board; 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) any reduction in Executive's Base Salary or Target Bonus without
his consent, or (ii) there is a "Change in Control" 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 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 this Agreement and shall not affect the determination of
whether Executive's termination was for Just Cause or With Reason.
11. Payments Following Termination.
(a) In the event that Executive's employment is terminated by the
Company for Just Cause or if Executive voluntarily resigns, then (i) the
Company within 10 business days 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 and (ii) no bonus for the year of termination
will be earned or paid to Executive. All stock options, restricted stock
and/or other awards held by Executive on the date of termination shall be
treated in accordance with the applicable award agreements.
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(b) In the event Executive's employment is terminated by the death of
Executive, then the Company shall pay Executive's estate within 30 days (i)
the Accrued Amounts and (ii) a pro-rata portion of the Target Bonus for the
year in which his death occurs. All stock options, restricted stock and/or
other awards held by Executive on the date of termination shall be treated
in accordance with the applicable award agreements.
(c) In the event that Executive is terminated by the Company without
Just Cause (and other than a termination due to expiration of the Term,
death, disability or a Control Termination) or by Executive With Reason,
then the Company shall pay Executive within 30 days (i) the Accrued
Amounts, (ii) a pro-rata portion of the Target Bonus for the year in which
his termination occurs and (iii) a cash lump sum equal to his Base Salary
and Target Bonus. All stock options, restricted stock and/or other awards
held by Executive on the date of termination shall be treated in accordance
with the applicable award agreements.
(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 within 30 days (i) the Accrued Amounts, (ii) a cash lump sum
equal to his Target Bonus and one and one-half times his Base Salary 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. All stock options,
restricted stock and/or other awards held by Executive upon the occurrence
of the Change in Control shall be treated in accordance with the applicable
award agreements.
(e) Notwithstanding anything to the contrary, payment of any 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.
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 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.
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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 and binding obligations 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) Arbitration. 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, 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. All reasonable costs and expenses
(including fees and disbursements of counsel) incurred by Executive
pursuant to this Section 14 shall be paid on behalf of or reimbursed to
Executive promptly by the Company; provided, however, that in the event the
Company prevails in such proceedings, Executive shall immediately repay all
such amounts to the Company.
(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
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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.
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 Chief
Executive Officer, 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 the Conseco, Inc. 2003 Amended and Restated Long-Term Incentive Plan
or any subsequent 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, and upon termination of Executive's
employment with the Company Executive will not be entitled to receive any
severance or other payments beyond those specified in this Agreement. 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
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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 thereof)
was authorized by the managing member of the Company. 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. Section 409A. Notwithstanding anything to the contrary in this
Agreement, if Executive is a "specified employee" within the meaning of Section
409A of the Internal Revenue Code, as amended (the "Code"), at the time of
Executive's separation from service, and if any payment or benefit otherwise
payable to Executive by the terms of this Agreement is considered to be
non-qualified deferred compensation under the Code, then the Company shall delay
any such payment or benefit to Executive until the earliest date permitted under
Section 409A without causing Executive to incur excise tax.
22. 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.
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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/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
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