Exhibit 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of the 10th day of September,
2003, is between 40|86 Advisors, Inc., (formerly known as Conseco Capital
Management, Inc.), a Delaware corporation ("Company"), and Eric R. Johnson
("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 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 the third anniversary of the Effective Date. The term of
Executive's employment shall not be automatically renewed. The term ending on
the third anniversary of the Effective Date is hereinafter referred to as the
"Term." The Term shall end upon the termination of Executive's employment with
the Company.
3. Duties. During the Term, Executive shall be engaged by the Company
in the capacity of President of the Company, a member of the board of directors
of the Company, and Senior Vice President of Conseco. Executive shall report to
the Chief Financial Officer of Conseco regarding the performance of his duties.
4. Extent of Services. During the Term, subject to the direction and
control of the Chief Financial Officer of Conseco and the board of directors of
Conseco (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 provisions of Section 9 hereof);
provided, however, that corporate organizations shall be limited to those which
Executive presently serves, if any, as listed on Exhibit A and such others as
mutually agreed upon by Executive and the Company.
5. Compensation. During the Term:
(a) As compensation for services hereunder rendered during the
Term hereof, Executive shall receive a base salary ("Base Salary") of
Five Hundred Thousand Dollars ($500,000) 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. Notwithstanding the above, a pro-rata portion of the 2006
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 2003 Target Bonus will be based on existing bonus
plans and targets. The Target Bonuses for 2004 and thereafter will be
based on financial and other objective targets that the Board
reasonably believes are reasonably attainable at the time that they
are set, with the 2004 targets being based on 2004 agreed-upon budgets
and incentive terms.
(c) Executive is entitled to a cash bonus of Nine Hundred Fifty
Thousand Dollars ($950,000) payable on January 1, 2004. Executive is
entitled to an additional Nine Hundred Fifty Thousand Dollars
($950,000) (the "Future Success Bonus") to be paid on the third
anniversary of the Effective Date. The Future Success Bonus shall be
subject to acceleration triggers under which (a) one-third of the
Future Success Bonus will become immediately payable upon the first
refinancing of the preferred stock and bank debt to occur during the
Term, (b) one-third of the Future Success Bonus will become
immediately payable on the first occasion when Conseco obtains an A.M.
Best rating of A- or higher, and (c) one-third of the Future Success
Bonus will become immediately payable upon the achievement of mutually
agreed-upon improvements in investment return and quality during the
Term.
(d) As recently approved by the Board, Executive will receive an
award of options to purchase 150,000 shares of common stock with an
exercise price equal to the fair market value on the date of the grant
and an award of 75,000 shares of restricted stock. One hundred percent
(100%) of the options will vest over a 4-year period beginning on the
date of the grant of the equity awards (the "Grant Date"), with
one-fourth vesting on each anniversary of the Grant Date. Fifty
percent (50%) of the restricted stock will vest on the second
anniversary of the Grant Date, with the other fifty percent (50%)
vesting on the third anniversary of the Grant Date. Executive shall
2
also be eligible to participate in and receive future grants under any
stock option or equity-based program offered by Conseco to executives
of similar title and responsibility, if any, subject to the discretion
of the Board.
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. 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 at its
expense maintain a term life insurance policy or policies on the life
of Executive with a face amount of 100% of Executive's Base Salary,
payable to such beneficiaries as Executive may designate. Executive
may, at his expense, purchase additional insurance at the time the
Company purchases said policy or policies. In the event Executive
terminates employment for any reason, Executive shall have the right,
at his expense, to begin paying the premiums required to continue such
insurance coverage from and after the date of his termination.
7. Disability. If Executive shall become physically or mentally
disabled during the Term to the extent that his ability to perform his duties
and services hereunder is materially and adversely impaired, his Base Salary,
bonus and other compensation provided herein shall continue while he remains
employed by the Company; provided, that if such disability (as confirmed by
competent medical evidence) continues for at least six (6) consecutive months,
the Company may terminate Executive's employment hereunder, in which case the
Company immediately shall pay Executive 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, (ii) the bonus payable pursuant to Section 5(c)
(to the extent not already paid), and (iii) any other applicable severance as
described under Section 11(a) hereof. However, any options or restricted stock
held by Executive on the date of termination shall vest only through the date of
termination according to the normal vesting schedule applicable to such options
or restricted stock and Executive shall not receive any accelerated or
additional vesting of such stock or options due to termination under this
Section 7 on or after such date. No payments or vesting under this paragraph
will be made if such disability arose primarily from (a) chronic use of
intoxicants, drugs or narcotics
3
(other than drugs prescribed to Executive by a physician and used by Executive
for their intended purpose for which they had been prescribed) or (b)
intentionally self-inflicted injury or intentionally self-induced illness.
8. Disclosure of Information. Executive acknowledges that in and as a
result of his employment with the Company, he has been and will be making use
of, acquiring and/or adding to confidential information of the Company and its
affiliates of a special and unique nature and value. As a material inducement to
the Company to enter into this Agreement and to pay to Executive the
compensation stated in Section 5, as well as any additional benefits stated
herein, Executive covenants and agrees that he shall not, at any time while he
is employed by the Company or at any time thereafter, directly or indirectly,
divulge or disclose for any purpose whatsoever, any confidential information
(whether or not specifically labeled or identified as "confidential
information"), in any form or medium, that has been obtained by or disclosed to
him as a result of his employment with the Company and which the Company or any
of its affiliates has taken appropriate steps to safeguard, except to the extent
that such confidential information (a) becomes a matter of public record or is
published in a newspaper, magazine or other periodical available to the general
public, other than as a result of any act or omission of Executive, (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency, in which event Executive shall give
prompt notice of such requirement to the Company to enable the Company to seek
an appropriate protective order or confidential treatment, or (c) must be
disclosed to enable Executive properly to perform his duties under this
Agreement. Upon the termination of Executive's employment, Executive shall
return such information (in whatever form) obtained from or belonging to the
Company or any of its affiliates which he may have in his possession or control.
9. Covenants Against 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, 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 employee
of the Company or any of its affiliates. Should any
4
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.
(a) Either the Company or Executive may terminate his employment
at any time for any reason upon written notice to the other. The
Company may terminate Executive's employment for Just Cause pursuant
to Section 10(b) below or in a Control Termination pursuant to Section
10(c) below. Executive's employment shall also terminate (i) upon the
death of Executive or (ii) after disability of Executive pursuant to
Section 7 hereof.
(b) The Company may terminate Executive's employment at any time
for Just Cause. For purposes of this Agreement, "Just Cause" shall
mean: (i) (A) a material breach by Executive of this Agreement, (B) a
material breach of Executive's duty of loyalty to the Company or its
affiliates, or (C) willful malfeasance or fraud or dishonesty of a
substantial nature in performing Executive's services on behalf of the
Company or its affiliates, which in each case is willful and
deliberate on Executive's part and committed in bad faith or without
reasonable belief that such breach or action is in the best interests
of the Company or its affiliates; (ii) Executive's use of alcohol or
drugs (other than drugs prescribed to Executive by a physician and
used by Executive for their intended purposes for which they had been
prescribed) or other repeated conduct which materially and repeatedly
interferes with the performance of his duties hereunder, which
materially compromises the integrity or the reputation of the Company
or its affiliates, or which results in other substantial economic harm
to the Company or its affiliates; (iii) Executive's conviction by a
court of law, admission that he is guilty, or entry of a plea of nolo
contendere with regard to a felony or other crime involving moral
turpitude; (iv) Executive's unscheduled absence from his employment
duties other than as a result of illness or disability, for whatever
cause, for a period of more than ten (10) consecutive days, without
consent from the Company prior to the expiration of the ten (10) day
period; or (v) Executive's failure to take action or to abstain from
taking action, as directed in writing by a member of the board or a
higher ranking executive of the Company or Conseco, where such failure
continues after Executive has been given written notice of such
failure and at least five (5) business days thereafter to cure such
failure.
No termination shall be deemed to be a termination by the Company
for Just Cause if the termination is as a result of Executive refusing
to act in a manner that would be a violation of applicable law.
(c) The Company may terminate Executive's employment in a Control
Termination. A "Control Termination" shall mean any termination by the
Company (or
5
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 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) 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.
6
11. Payments Following Termination.
(a) In the event that Executive's employment is terminated by the
Company for any reason other than Just Cause (including, without
limitation, a termination under Section 7 hereof), Executive will be
entitled to receive the severance pay and benefits available under the
applicable severance policy for officers of Executive's ranking as and
to the extent approved by the Board and in effect on the date of
termination.
(b) 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. No unpaid portion of
the Future Success Bonus will be paid on or after 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.
(c) In the event Executive's employment is terminated by the
death of Executive, then the Company shall pay Executive's estate (i)
the severance amounts described in Section 11(a) above, if any, (ii) 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, and (iii) the bonus payable pursuant to Section 5(c) (to the
extent not already paid). In addition, Executive's Future Success
Bonus shall fully vest on 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.
(d) In the event that Executive is terminated by the Company
without Just Cause, 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) the bonus payable pursuant to Section
5(c) (to the extent not already paid), and (iii) the severance amounts
described in Section 11(a) above, if any. In addition, Executive's
Future Success Bonus will fully vest on 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.
(e) 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) any amounts payable under the
Company's severance policy pursuant to Section 11(a) above as in
effect prior to the Change in Control, (ii) a lump sum of the
remaining
7
payments of Base Salary described in Section 5(a) that would have been
payable to Executive through the date of termination, and (iii) the
bonus payable pursuant to Section 5(c) (to the extent not already
paid). In addition, Executive's Future Success Bonus will fully vest
on the date of termination. 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.
(f) 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.
12. Change in Control. In the event of a Change in Control, Executive
will be entitled to the full vesting of any options and restricted stock held by
Executive on the date of such Change in Control.
13. 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.
14. 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
8
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.
15. Arbitration of Disputes; Injunctive Relief.
(a) Except as provided in subsection (b) below, any controversy
or claim arising out of or relating to this Agreement or the breach
thereof, shall be settled by binding arbitration in the City of
Indianapolis, Indiana, 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. Each party shall pay its own costs and expenses
incurred in connection with the enforcement of this Agreement,
regardless of the final outcome.
(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.
16. 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.
17. 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.
18. Entire Agreement. Other than any equity award agreements entered
into pursuant to the Conseco, Inc. 2003 Long-Term 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, including, without limitation, severance provided
under the Senior Officer Key Employee Retention Program approved by the
Bankruptcy Court. 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
9
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.
19. 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.
20. No Third Party Beneficiaries. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not intended to confer
third-party beneficiary rights upon any other person.
21. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written, effective as of the Effective Date.
COMPANY:
40|86 ADVISORS, INC.
By:/s/Eugene M. Bullis
-------------------------------------
Name: Eugene M. Bullis
Its: Chairman
CONSECO, INC.
By:/s/William S. Kirsch
-------------------------------------
Name: William S. Kirsch
Its: General Counsel
EXECUTIVE:
/s/Eric R. Johnson
----------------------------------------
Eric R. Johnson
10