EXHIBIT 10.14
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made as of ________
__, 2004 by and among Conseco, Inc., a Delaware corporation (the "Company"),
CDOC, Inc., a Delaware corporation and wholly-owned subsidiary of the Company
("CDOC"), and Conseco Services, LLC, an Indiana limited liability company and
wholly-owned subsidiary of the Company ("Services"), and _______________
("Indemnitee"). The Company, CDOC and Services are sometimes collectively
referred to herein as "Indemnitors."
WHEREAS, the Company desires to attract and retain qualified directors
and to provide them with protection against liability and expenses incurred
while acting in that capacity;
WHEREAS, the certificate of incorporation and bylaws of the Company
contain provisions for indemnifying individuals in connection with their service
as members of the board of directors of the Company;
WHEREAS, the bylaws of the Company and applicable state law contemplate
that separate contracts may be entered into between the Company with respect to
their indemnification by the Company;
WHEREAS, the Company understands that Indemnitee has reservations about
serving or continuing to serve the Company without adequate protection against
personal liability arising from such service;
WHEREAS, the Company expects to derive substantial direct and indirect
benefits from Director's service, and has accordingly agreed to indemnify
Director pursuant to this Agreement; and
WHEREAS, CDOC and Services derive substantial direct and indirect
benefits from services and other benefits and consideration provided by the
Company, and will derive substantial direct and indirect benefits from
Director's service to the Company, and have accordingly agreed to indemnify
Director pursuant to this Agreement.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, and in consideration of
Indemnitee's service to the Company and the direct and indirect benefits that
CDOC and Services will receive from such service, the parties agree as follows:
1. Contractual Indemnity. In addition to the indemnification provisions
of the certificate of incorporation and bylaws of the Company, Indemnitors
hereby agree, subject to the limitations of Sections 2 and 5 hereof, on a
joint and several basis:
(a) To indemnify, defend and hold Indemnitee harmless to the
greatest extent possible under applicable law from and against any and all
judgments, fines, penalties, amounts paid in settlement and any other amounts
reasonably incurred or suffered by Indemnitee (including attorneys' fees) if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
Indemnitee's
conduct was unlawful, in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Company
(collectively referred to hereafter as a "Claim"), to which Indemnitee is, was
or at any time becomes a party, by reason of the fact that Indemnitee is, was or
at any time becomes a director, officer, employee or agent of the Company or is
or was serving or at any time serves at the request of the Company as a
director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, business organization, trust or other
enterprise or association, whether or not arising prior to the date of this
Agreement.
(b) To pay any and all expenses reasonably incurred by Indemnitee
in defending any Claim (including reasonable attorneys' fees and expenses and
other reasonable costs of investigation and defense), as the same are incurred
and in advance of a final judicial determination (as to which all rights of
appeal therefrom have been exhausted or lapsed) (a "Final Judicial
Determination") of any such Claim, upon receipt of a written undertaking by or
on behalf of Indemnitee (which shall be unsecured and shall not bear interest)
to reimburse such amounts if a Final Judicial Determination determines that
Indemnitee (i) is not entitled to be indemnified by Indemnitors under this
Agreement, and (ii) is not entitled to be indemnified by the Company under the
certificate of incorporation or the bylaws of the Company.
(c) To pay any and all expenses reasonably incurred by Indemnitee
in connection with Indemnitee's involvement in (including, without limitation,
involvement as a witness or deponent), but not as a party to, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the
Company, by reason of the fact that Indemnitee is, was or at any time becomes a
director, officer, employee or agent of the Company or is or was serving or at
any time serves at the request of the Company as a director, officer, employee
or agent of another corporation, limited liability company, partnership, joint
venture, business organization, trust or other enterprise or association,
whether or not arising prior to the date of this Agreement.
(d) The termination of any action or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that (i) Indemnitee did
not act in good faith and in a manner which Indemnitee reasonably believed to be
in the best interests of the Company or (ii) with respect to any criminal action
or proceeding, Indemnitee had reasonable cause to believe that Indemnitee's
conduct was unlawful.
2. Limitations on Contractual Indemnity. Indemnitee shall not be entitled
to indemnification or advancement of expenses under Section 1:
(a) if a court of competent jurisdiction, by a Final Judicial
Determination, shall determine that such indemnity is not permitted under
applicable law; or
(b) on account of any suit in which judgment is rendered for an
accounting of profits made from the purchase or sale by Indemnitee of securities
of the Company in violation of the provisions of Section 16(b) of the Securities
Exchange Act of 1934; or
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(c) with respect to proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except (i) with respect to
proceedings brought in good faith to establish or enforce a right to
indemnification under this Agreement or the Company's certificate of
incorporation or bylaws or any other statute or law, or (ii) at the Company's
discretion, in specific cases if the board of directors of the Company (or a
committee thereof) has approved the initiation or bringing of such suit; or
(d) for expenses or liabilities of any type whatsoever which have
been paid directly to Indemnitee by an insurance carrier under a policy of
liability insurance maintained by the Company; or
(e) for any expenses incurred by the Indemnitee with respect to
any proceeding instituted by Indemnitee to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in good faith
or was frivolous.
Notwithstanding any limitations set forth in this Section 2 regarding
Indemnitors' obligation to provide indemnification, Indemnitee shall be entitled
under Section 4 to receive expense advances hereunder with respect to any such
Claim unless and until a court of competent jurisdiction shall have made a Final
Judicial Determination that Indemnitee has engaged in acts, omissions or
transactions for which Indemnitee is prohibited from receiving indemnification
under this Section 2.
3. Continuation of Contractual Indemnity. All agreements and obligations
of Indemnitors contained herein shall continue for so long as Indemnitee shall
be subject to, or involved in, any possible action, suit, proceeding or other
assertion of a Claim or Claims.
4. Expenses; Indemnification Procedure. Indemnitors shall, on a joint and
several basis, advance all expenses incurred by Indemnitee in connection with
the investigation, defense, settlement or appeal of any action, suit, proceeding
or other Claim referenced in Section 1 hereof. Indemnitee hereby undertakes to
repay such amounts advanced if, and to the extent that, a Final Judicial
Determination determines that Indemnitee is not entitled to be indemnified by
Indemnitors as authorized hereby. The advances to be made hereunder shall be
paid by Indemnitors to Indemnitee within twenty (20) days following delivery of
a written request therefor by Indemnitee to Indemnitors as provided in Section
16.
5. Notification and Defense of Claim. If any action, suit, proceeding or
other Claim is brought against Indemnitee in respect of which indemnity may be
sought under this Agreement:
(a) Indemnitee will promptly notify Indemnitors in writing of the
commencement thereof, and Indemnitors will be entitled to participate therein at
their own expense or to assume the defense thereof and to employ counsel
reasonably satisfactory to Indemnitee, provided however, that failure to provide
such notice in accordance with this Section 5(a) shall not affect Indemnitee's
rights to receive any expenses or expense advances hereunder unless and except
to the extent that Indemnitors did not otherwise learn of such Claim and such
failure of Indemnitee to provide such notice results in the forfeiture by
Indemnitors of substantial rights and defenses. Notice to Indemnitors shall be
made in accordance with Section 16. If Indemnitors do not
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assume the defense of a Claim or Indemnitee reasonably determines that there may
be a conflict between the positions of Indemnitors and Indemnitee in conducting
the defense of a Claim, then counsel to Indemnitee shall be entitled to conduct
the defense as reasonably determined by such counsel to be necessary or
desirable to protect the interests of the Indemnitee and Indemnitors shall not
have the right to assume the defense of such Claim and the reasonable fees and
expenses of such counsel to the Indemnitee shall be borne by Indemnitors, on a
joint and several basis, upon delivery to the Company of the undertaking
referred to in Section 1(b). However, in no event will Indemnitors be obligated
to pay the fees or expenses of more than one firm of attorneys representing
Indemnitee and any other agents of Indemnitors in connection with any one Claim
or separate but substantially similar or related Claims in the same jurisdiction
arising out of the same general allegations or circumstances, unless Indemnitee
reasonably determines that representation of Indemnitee and other agents of
Indemnitors by the same firm of attorneys would present a conflict of interest
that materially prejudices the interests of Indemnitee.
(b) Indemnitors shall not be liable to indemnify Indemnitee for
any amounts paid in settlement of any Claim effected without Indemnitors'
written consent, and Indemnitors shall not settle any Claim in a manner which
would impose any penalty or limitation on Indemnitee or require the admission of
guilt or responsibility without Indemnitee's written consent, provided, however,
that neither Indemnitors nor Indemnitee shall unreasonably withhold its consent
to any proposed settlement and, provided further, that if a Claim is settled by
Indemnitee with Indemnitors' written consent, or if there is a Final Judicial
Determination for the plaintiff in connection with the Claim by a court of
competent jurisdiction, Indemnitors shall indemnify and hold harmless Indemnitee
from and against any and all losses, costs, expenses and liabilities incurred by
reason of such settlement or judgment in accordance with Section 1.
(c) Indemnitee shall give Indemnitors such information in the
possession of, or reasonably obtainable by, Indemnitee, and cooperation as
Indemnitors may reasonably require and as shall be within Indemnitee's power and
control.
(d) Any indemnification provided for in Section 1 shall be made
promptly, and in any event within forty-five (45) days (or in the case of
advance of expenses, twenty (20) days) after receipt of the written request of
Indemnitee. If a claim for indemnification under this Agreement, under any
statute, or under any provision of the Company's certificate of incorporation or
bylaws providing for indemnification, is not paid in full by Indemnitors within
forty-five (45) days after a written request for payment thereof has first been
received by Indemnitors, Indemnitee may, but need not, at any time thereafter
bring an action against Indemnitors to recover the unpaid amount of the claim
and, subject to Section 12 of this Agreement, Indemnitee shall also be entitled
to be reimbursed for the expenses (including attorneys' fees) of bringing such
action. It shall be a defense to any such claim (other than an action brought to
enforce a claim for expenses incurred in connection with any action or
proceeding in advance of its final disposition) that Indemnitee has not met the
standards of conduct which make it permissible under applicable law for
Indemnitors to indemnify Indemnitee for the amount claimed, but the burden of
proving such defense shall be on Indemnitors, and Indemnitee shall be entitled
to receive interim payments of expenses pursuant to Section 4 unless and until
there is a Final Judicial Determination with respect to such defense. It is the
parties' intention that if Indemnitors contest Indemnitee's right to
indemnification, the question of Indemnitee's right to indemnification shall be
for the court to decide, and neither the
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failure of Indemnitors (including their respective board of directors, board of
managers, any committee or subgroup thereof, or independent legal counsel) to
have made a determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by Indemnitors
(including their respective board of directors, board of managers, any committee
or subgroup thereof, or independent legal counsel) that Indemnitee has not met
such applicable standard of conduct, shall create a presumption that Indemnitee
has or has not met the applicable standard of conduct.
(e) If, at the time of the receipt of a notice of a Claim, the
Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the applicable policies. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of such policies, provided however,
that nothing contained in this Section 5(e) shall excuse Indemnitors from their
joint and several obligation to pay expense advances to Indemnitee, or indemnify
Indemnitee, as provided herein.
6. Scope. Notwithstanding any other provision of this Agreement,
Indemnitors, on a joint and several basis, hereby agree to indemnify Indemnitee
against any Claim to the fullest extent permitted by law, notwithstanding that
such indemnification is not specifically authorized by the other provisions of
this Agreement or the Company's certificate of incorporation or bylaws or by
applicable law. In the event of any change, after the date of this Agreement, in
any applicable law, statute or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors, an officer or other
corporate agent, such change shall be, ipso facto, within the purview of
Indemnitee's rights and Indemnitors' obligations, under this Agreement. In the
event of any change in any applicable law, statute, or rule which narrows the
right of a Delaware corporation to indemnify a member of its board of directors,
an officer, or other corporate agent, such change, to the extent not otherwise
required by applicable law to be applied to this Agreement, shall have no effect
on this Agreement or the parties' rights and obligations hereunder.
7. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by Indemnitors for some or a portion of the
expenses, judgments, fines or penalties actually or reasonably incurred by him
in the investigation, defense, appeal or settlement of any civil or criminal
action or proceeding, but not, however, for the total amount thereof,
Indemnitors, on a joint and several basis, shall nevertheless indemnify
Indemnitee for the portion of such expenses, judgments, fines or penalties to
which Indemnitee is entitled.
8. Director and Officer Liability Insurance. The Company shall use
reasonable best efforts to obtain and at all times maintain, for the benefit of
Director, coverage under a director and officer liability insurance policy at a
level that is reasonable and customary for similarly situated companies.
9. Public Policy. The parties acknowledge that in certain instances,
federal law or applicable public policy may prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise.
Indemnitee understands and acknowledges that the
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Company has undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the Company's right
under public policy to indemnify Indemnitee.
10. No Restrictions. The rights and remedies of Indemnitee under this
Agreement shall not be deemed to exclude or impair any other rights or remedies
to which Indemnitee may be entitled under the certificate of incorporation or
bylaws of the Company or under any other agreement, provision of law or
otherwise, nor shall anything contained herein restrict the right of Indemnitors
to indemnify Indemnitee in any proper case even though not specifically provided
for in this Agreement, nor shall anything contained herein restrict Indemnitee's
right to contribution as may be available under applicable law. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action Indemnitee took or did not take while serving as a director,
officer, employee or agent of the Company or any of its subsidiaries even though
Indemnitee may have ceased to serve in such capacity.
11. Severability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof. Furthermore, to the fullest extent possible, the
provisions of this Agreement (including, without limitations, each portion of
this Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
12. Attorneys' Fees. In the event of any litigation or other action or
proceeding to enforce or interpret this Agreement, the prevailing party as
determined by the court shall be entitled to an award of its reasonable
attorneys' fees and other costs, in addition to such relief as may be awarded by
a court or other tribunal.
13. Further Assurances. The parties will do, execute and deliver, or will
cause to be done, executed and delivered, all such further acts, documents and
things as may be reasonably required for the purpose of giving effect to this
Agreement and the transactions contemplated hereby.
14. Acknowledgment. Indemnitors expressly acknowledge that they have
entered into this Agreement and assumed the obligations imposed on them
hereunder in order to induce Indemnitee to serve or to continue to serve
Indemnitors, and further acknowledge that Indemnitee is relying on this
Agreement in serving or continuing to serve in such capacity.
15. Counterparts. This Agreement may be executed (including by facsimile)
in one or more counterparts, each of which shall constitute an original and
together shall constitute one instrument.
16. Notice. All notices, requests, or other communications provided for
in this Agreement shall be in writing and shall be delivered personally or by
reputable overnight courier service (delivery charges prepaid) to any party at
the address herein or such other address as indicated by
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written notice. Any such notice, request, or other communication shall be deemed
to have been given pursuant to this Agreement when delivered personally or on
the second business day after deposit with a reputable overnight courier
service, as the case may be. Addresses for notice to Indemnitee is shown on the
signature page to this Agreement. Address for notice to Indemnitors shall be to
Conseco, Inc., 11825 N. Pennsylvania Street, Carmel, Indiana, 46032, Attention:
Chief Executive Officer.
17. Subrogation. In the event of payment under this Agreement, Indemnitors
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable Indemnitors
effectively to bring suit to enforce such rights.
18. Governing Law; Binding Effect; Amendment.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware (without regard to any
conflict of law provisions thereof).
(b) This Agreement shall be binding upon Indemnitee, the Company,
CDOC and Services, their successors and assigns, and shall inure to the benefit
of Indemnitee, his heirs, personal representatives and assigns and to the
benefit of the Company, CDOC, Services and their respective successors and
assigns.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by each party hereto.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
CONSECO, INC.
By: ___________________________________
Name:
Title:
CDOC, INC.
By: ___________________________________
Name:
Title:
CONSECO SERVICES, LLC
By: ___________________________________
Name:
Title:
AGREED AND ACCEPTED:
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Name:
Address:
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