Exhibit 10.19
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of 9th day of August, 2006, is between
Conseco, Inc., a Delaware corporation ("Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("Executive").
WHEREAS, the services of Executive and his managerial and professional
experience are of value to the Company.
WHEREAS, the Company desires to continue to have the benefit and advantage
of the services of Executive for an extended period to assist the Company 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
September 7, 2006 (the "Effective Date"). Subject to the provisions for
termination as provided in Section 10 hereof, the term of Executive's employment
under this Agreement shall be the period beginning on the Effective Date and
ending on December 31, 2008 (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 and Chief Operating Officer of the Company. As such,
he will be accountable for duties customarily associated with that position.
Executive shall report to the Chief Executive Officer 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 the Company and the Board of Directors
of the Company (the "Board"), 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, subject to Section 9 hereof, this
shall not be construed as preventing Executive from serving on boards of
professional, community, civic, education, charitable and corporate
organizations on which he presently serves or may choose to serve or investing
his assets in such form or manner as will not require any services on the part
of Executive in the operation of the affairs of the companies in which such
investments are made (to the extent not in violation of the noncompete listed in
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 Six
Hundred Thousand Dollars ($600,000) 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 Board or the
Compensation Committee thereof.
(b) In addition to Base Salary, Executive will have an opportunity to
earn a bonus each year as determined by the Board or the Compensation
Committee thereof, with a target annual bonus equal to 100% of Executive's
Base Salary (the "Target Bonus") and a maximum annual bonus of 200% of his
Base Salary with respect to any calendar year, with such bonus payable at
such time that other similar payments are made to other Company executives.
For purposes of clarification, annual executive bonuses are generally paid
in March of the year following the year with respect to which such bonuses
are payable, if Executive remains employed with the Company through such
date or as otherwise payable under the Company's severance policy for
senior officers. Performance requirements for Target Bonuses will be based
on financial and other objective targets that the Board reasonably believes
are reasonably attainable at the time that they are set.
(c) On the Effective Date of this Agreement, Executive will receive an
award of 10,000 shares of restricted stock (the "Restricted Stock Grant").
One hundred percent (100%) of the Restricted Stock Grant will vest on
December 31, 2008, subject to his continued employment hereunder until such
date. Executive shall also be eligible to participate in and receive future
grants under any stock option or equity-based program offered by the
Company to executives of similar title and level of responsibility, subject
to the discretion of the Board.
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 six weeks of vacation with pay each
year and will not be eligible for any other paid-time-off program (other
than paid holidays).
(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
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presentation of an itemized account of such expenditures. 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).
(d) In lieu of any insurance on the life of Executive offered by the
Company pursuant to Section 6(a) hereof, the Company shall reimburse
Executive for up to $5,000 per year for premiums on term life insurance
policies on the life of Executive as in effect on the date hereof.
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, Executive's 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 Board'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
immediately shall pay Executive cash payments 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"), (iv) a pro rata
Target Bonus for the year in which the termination for Disability occurred,
and (v) one times his Base Salary. All stock options, restricted stock
and/or other awards held by Executive shall be treated in accordance with
the applicable grant agreements or, in the case of equity award agreements
granted prior to the Effective Date, as detailed in Executive's prior
employment agreement dated November, 29, 2004.
(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
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whatsoever, any confidential information (whether or not specifically labeled or
identified as "confidential information"), in any form or medium, that has been
obtained by or disclosed to him as a result of his employment with the Company
and which the Company or any of its affiliates has taken appropriate steps to
safeguard, except to the extent that such confidential information (a) becomes a
matter of public record or is published in a newspaper, magazine or other
periodical available to the general public, other than as a result of any act or
omission of Executive, (b) is required to be disclosed by any law, regulation or
order of any court or regulatory commission, department or agency, in which
event Executive shall give prompt notice of such requirement to the Company to
enable the Company to seek an appropriate protective order or confidential
treatment, or (c) must be disclosed to enable Executive properly to perform his
duties under this Agreement. Upon the termination of Executive's employment,
Executive shall return such information (in whatever form) obtained from or
belonging to the Company or any of its affiliates which he may have in his
possession or control.
9. Covenants Against 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:
(a) throughout the period Executive remains employed and for one year
thereafter, Executive shall not, directly or indirectly, anywhere in the
United States of America, (i) solicit or attempt to convert to other
insurance carriers or other corporations, persons or other entities
providing these same or similar products or services provided by the
Company and its affiliates, any customers or policyholders of the Company
or any of its affiliates or (ii) solicit for employment or knowingly employ
any employee of the Company or any of its affiliates;
(b) throughout the period Executive remains employed 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 long-term
care or health-related insurance products or services or (ii) in any manner
compete with the Company or any of its affiliates with respect to long-term
care or health-related insurance lines of business; provided, however, that
if Executive resigns, Executive may serve as a consultant (other than with
respect to matters relating to long-term care or health insurance products
or services) for such companies that the Chief Executive Officer of the
Company consents to (such consent shall not be unreasonably withheld where
actual competition is not, in the Chief Executive Officer's sole judgment,
deemed to be significant or meaningful) and provided further that in the
event Executive
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serves as such a consultant, all severance payments and other ongoing
obligations of the Company under this Agreement shall cease; or
(c) throughout the Term or, if later, the period ending on the first
anniversary following the date Executive terminates employment during the
Term, 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,
life, or accident insurance products or services or (ii) in any manner
compete with the Company or any of its affiliates with respect to annuity,
life or accident 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; provided, however, that if Executive resigns during the
Term, Executive may serve as a consultant (other than with respect to
matters relating to long-term care or health insurance products or
services) for such companies that the Chief Executive Officer of the
Company consents to (such consent shall not be unreasonably withheld where
actual competition is not, in the Chief Executive Officer's sole judgment,
deemed to be significant or meaningful) and provided further that in the
event Executive serves as such a consultant, all severance payments and
other ongoing obligations of the Company under this Agreement shall cease.
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) a material breach by Executive of this Agreement, (B) a
material breach of Executive's duty of loyalty to the Company or its
affiliates, or (C) willful malfeasance or fraud or dishonesty of a
substantial nature in performing Executive's services on behalf of the
Company or its affiliates, which
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in each case is willful and deliberate on Executive's part and
committed in bad faith or without reasonable belief that such breach
or action is in the best interests of the Company or its affiliates;
(ii) Executive's use of alcohol or drugs (other than drugs
prescribed to Executive by a physician and used by Executive for their
intended purposes for which they had been prescribed) or other
repeated conduct which materially and repeatedly interferes with the
performance of his duties hereunder, which materially compromises the
integrity or the reputation of the Company or its affiliates, or which
results in other substantial economic harm to the Company or its
affiliates;
(iii) Executive's conviction by a court of law, admission that he
is guilty, or entry of a plea of nolo contendere with regard to a
felony or other crime involving moral turpitude;
(iv) Executive's unscheduled absence from his employment duties
other than as a result of illness or disability, for whatever cause,
for a period of more than 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, 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 the Company's financial statements due
to a violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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.
(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 of the Company.
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
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promulgated under the 1934 Act), directly or indirectly, of securities
of the Company or its Ultimate Parent representing 51% or more of the
combined voting power of the then outstanding securities of the
Company or its Ultimate Parent entitled to vote generally with respect
to the election of the board of directors of the Company or its
Ultimate Parent; or
(ii) as a result of or in connection with a tender or exchange
offer or contest for election of directors, individual board members
of the Company (identified as of the date of commencement of such
tender or exchange offer, or the commencement of such election
contest, as the case may be) cease to constitute at least a majority
of the board of directors of the Company; or
(iii) the consummation of a merger, consolidation or
reorganization with or into the Company unless (x) the stockholders of
the Company 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 the Company (or
its successor) or, if applicable, the Ultimate Parent and (y)
individual board members of the Company (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 the
Company (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 the Company (or its successor).
(d) At Executive's option, he may terminate employment with the
Company "With Reason" provided one of more of the following conditions are
met: (i) his role or duties have been materially diminished by changes in
responsibilities or authority; (ii) Executive is required to report to
anyone other than the Chief Executive Officer, the Board or a designated
Committee thereof; (iii) Executive is required to relocate his primary
office more than 25 miles from the Merchandise Mart in Chicago, Illinois,
without Executive's consent, or (iv) there is a "Change in Control" of the
company as defined in Section 10(c) and, following Executive's written
request made prior to the Change in Control, the ultimate parent entity or
entities directly or indirectly gaining control of a majority of the
Company's Board or outstanding securities entitled to vote with respect to
the Company's 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
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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 Executive's employment is terminated by the Company
for Just Cause as so defined, or if Executive voluntarily resigns, then the
Company immediately shall pay Executive a cash payment of his Base Salary
as provided in Section 5(a) hereof that was earned but unpaid as of the
date of termination. Any options or restricted stock held by Executive on
the date of termination shall vest only through the date of termination
according to the normal vesting schedule applicable to such options or
restricted stock, and Executive shall not receive any accelerated or
additional vesting of such stock or options on or after such date.
(b) In the event Executive's employment is terminated by the death of
Executive, then the Company shall pay Executive's estate (i) a lump sum of
the remaining payments of Base Salary described in Section 5(a) that would
have been payable to Executive through the date of death, (ii) a pro-rata
portion of the Target Bonus for the year in which his death occurs plus the
Target Bonus for the preceding year if his death occurs after year-end but
before such bonuses are paid. Except as provided for in equity award
agreements granted prior to the Effective Date (as modified by Executive's
prior employment agreement dated November, 29, 2004) any options or
restricted stock held by Executive on the date of termination shall vest
only through the date of termination according to the normal vesting
schedule applicable to such options or restricted stock.
(c) In the event that Executive is terminated by the Company without
Just Cause (and other than non-renewal, death, disability or a Control
Termination) or by Executive With Reason, then the Company shall pay
Executive (i) on a basis consistent with the timing of the Company's normal
payroll processing, the remaining payments of Base Salary described in
Section 5(a) that would have been payable to Executive through the date of
his termination of employment, (ii) a pro-rata portion of the Target Bonus
for the year in which his termination occurs plus the Target Bonus for the
preceding year if his termination occurs after year-end but before such
bonuses are paid, and (iv) twelve (12) months of his Base Salary plus
Target Bonus (in the form of salary continuation on a pro-rata basis with
or without medical and dental benefits, at Executive's election and cost).
Except as provided for in equity award agreements, granted prior to the
Effective Date (as modified by Executive's prior employment agreement dated
November, 29, 2004) any options or restricted stock held by Executive on
the date of termination shall vest only through the date of termination
according to the normal vesting schedule applicable to such options or
restricted stock.
(d) In the event that Executive is terminated by the Company (or its
successor) in a Control Termination as so defined, then the Company shall
pay Executive (i) on a basis consistent with the timing of the Company's
normal payroll processing, the
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remaining payments of Base Salary described in Section 5(a) that would have
been payable to Executive through the date of his termination of
employment, (ii) a pro-rata portion of the Target Bonus for the year in
which his termination occurs plus the Target Bonus for the preceding year
if his termination occurs after year-end but before such bonuses are paid,
and (iii) twenty-four (24) months of his Base Salary and Target Bonus (in
the form of salary continuation on a pro-rata basis with or without medical
and dental benefits, at Executive's election and cost). To the extent that
Executive is terminated in a Control Termination that occurs in
anticipation of a Change in Control, any options or restricted stock held
by Executive shall fully vest, retroactive to the date of termination, upon
the occurrence of the Change in Control.
(e) Notwithstanding anything to the contrary, in the event that
Executive's employment terminates, the Company shall pay to Executive, in
accordance with its standard payroll practice, Executive's accrued
vacation.
(f) Notwithstanding anything to the contrary, payment of any
post-termination moneys or benefits under this Agreement is conditioned
upon the execution by Executive of a separation and release agreement, in a
form that is consistent in all material respects with the provisions and
protections set forth herein and reasonably acceptable to the Company and
Executive, 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.
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. 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
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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
Chicago, Illinois in accordance with the laws of the State of Illinois 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 Northern District
of Illinois if the arbitration is in Chicago, Illinois. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association, except with respect to the election 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 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.
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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
General Counsel, 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 Long-Term Equity Incentive Plan or any
subsequent equity 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
the Company and its affiliates. This Agreement may not be changed orally, but
only by an instrument in writing signed by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
18. Binding Agreement and Governing Law; Assignment Limited. This Agreement
shall be binding upon and shall inure to the benefit of the parties and their
lawful successors in interest (including, without limitation, Executive's
estate, heirs and personal representatives) and, except for issues or matters as
to which federal law is applicable, shall be construed in accordance with and
governed by the laws of the State of Illinois. 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. 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.
20. 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, INC.
/s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman of the Board
EXECUTIVE:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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