Exhibit 10.22
_________________, 2006
[name and address]
Re: Grant of Performance Unit Award
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Dear [name]:
Conseco, Inc., a Delaware corporation (the "Company"), is pleased to
advise you that pursuant to the Company's 2003 Amended and Restated Long-Term
Incentive Plan (the "Plan"), the Company has granted you an award of 50,000
performance units (the "Performance Units"), effective as of ____________, 2006
(the "Date of Grant"), subject to the terms and conditions of the Plan and the
terms and conditions set forth herein. Any capitalized terms used herein and not
defined herein have the meaning set forth in the Plan.
1. Performance Units. Each Performance Unit represents the right to receive
one share of the Company's Common Stock, par value $.01 per share ("Common
Stock"), plus Dividend Equivalents thereon (as described in paragraph 5(b)
below) subject to satisfaction of the service and performance-based vesting
criteria described in paragraph 3 and Schedule A hereof. Upon satisfaction of
such vesting criteria, and the payment to the Company of an amount equal to the
par value of such shares, the shares of Common Stock issued to you shall be
fully paid and nonassessable and shall be issued in your name. You may elect to
defer receipt of the Common Stock and Dividend Equivalents underlying the
Performance Units in accordance with any Company deferred compensation program
that may then be in effect and any applicable tax rules and regulations.
2. Restrictions on Transfer. You may not sell, assign, transfer, convey,
pledge, exchange or otherwise encumber or dispose the Performance Units, except
to the Company. Any purported encumbrance or disposition in violation of the
provisions of this paragraph 2 shall be void ab initio, and the other party to
any such purported transaction shall not obtain any rights to or interest in the
Performance Units.
3. Vesting of Performance Units.
(a) The Performance Units shall vest (in whole or in part) and the
underlying shares of Common Stock shall be issued to you if you remain employed
by the Company or a Subsidiary through the dates set forth on Schedule A
attached hereto to the extent the performance-based vesting criteria set forth
on Schedule A are satisfied.
(b) Any Performance Units that do not vest pursuant to subparagraph (a)
above shall be cancelled.
4. Forfeiture of Performance Units. Except as expressly set forth in any
written agreement between you and the Company or a Subsidiary (whether entered
into prior to or after the date of this letter agreement), if you cease to be an
employee of the Company or a Subsidiary for any reason, except as and to the
extent the Common Stock underlying the Performance Units has been issued to you,
you shall forfeit the remaining portion of the Performance Units.
5. Dividend, Voting and Other Rights.
(a) Until issuance of shares of Common Stock pursuant to paragraph 1
hereof, you shall have no voting or other rights of a stockholder with respect
to the Performance Units.
(b) You shall have the right to receive Dividend Equivalents on Performance
Units that become vested hereunder, payable in cash without interest, to the
extent that cash dividends are paid on the Common Stock underlying the
Performance Units after the date of this letter agreement and prior to the
issuance of shares of Common Stock underlying the Performance Units. Such
Dividend Equivalents shall be subject to any required tax withholding, and shall
be payable on such date or dates as the underlying Common Stock is issued to you
in an amount equal to the number of shares of Common Stock delivered in respect
of your vested Performance Shares multiplied by the aggregate per share
dividends declared and paid after the date of this letter agreement and prior to
the issuance of shares of Common Stock underlying the Performance Units.
6. Certain Definitions. For the purposes of this letter agreement, the
following term has the meaning set forth below:
"Subsidiary" means a subsidiary corporation, as defined in Section
424(f) of the Code (or any successor section thereto).
7. Withholding Taxes. If the Company or any Subsidiary shall be required to
withhold any federal, state, local or foreign tax in connection with any
issuance or vesting of Performance Units or other securities pursuant to this
letter agreement, and the amounts available to the Company or such Subsidiary
for such withholding are insufficient, you shall pay the tax or make provisions
that are satisfactory to the Company or such Subsidiary for the payment thereof.
If permitted at such time by the Company, you may elect to satisfy all or any
part of any such withholding obligation by surrendering to the Company or such
Subsidiary a portion of the Performance Units that become nonforfeitable
hereunder, and the Performance Units so surrendered by you shall be credited
against any such withholding obligation at the Fair Market Value of the Common
Stock underlying such Performance Units on the date of such surrender.
8. No Special Right to Employment. Nothing in this letter agreement shall
interfere with or limit in any way the right of the Company to terminate your
employment or other performance of services at any time, nor confer upon you any
right to continue in the employ or as a director or officer of, or in the
performance of other services for, the Company or a Subsidiary for any period of
time, or to continue your present (or any other) rate of compensation or level
of responsibility. Nothing in this letter agreement shall confer upon you any
right to be
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selected again as a Plan participant, and nothing in the Plan or this letter
agreement shall provide for any adjustment to the number of Performance Units
upon the occurrence of subsequent events except as provided in the Plan.
9. Relation to Other Benefits. Any economic or other benefit to you under
this letter agreement or the Plan shall not be taken into account in determining
any benefits to which you may be entitled under any profit-sharing, retirement
or other benefit or compensation plan maintained by the Company or a Subsidiary
and shall not affect the amount of any life insurance coverage available to any
beneficiary under any life insurance plan covering employees of the Company or a
Subsidiary.
10. Amendments to Plan. Any amendment to the Plan shall be deemed to be an
amendment to this letter agreement to the extent that the amendment is
applicable hereto; provided, however, that no amendment shall adversely affect
the your rights under this letter agreement without your consent.
11. Severability. Whenever possible, each provision of this letter
agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this letter agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this letter agreement.
12. Conformity with Plan. This letter agreement and the Performance Units
granted pursuant hereto are intended to conform in all respects with, and are
subject to all applicable provisions of, the Plan (which is incorporated herein
by reference). Inconsistencies between this letter agreement and the Plan shall
be resolved in accordance with the terms of the Plan. By executing and returning
the enclosed copy of this letter agreement, you acknowledge your receipt of this
letter agreement and the Plan and agree to be bound by all of the terms of this
letter agreement and the Plan.
13. Successors and Assigns. Except as otherwise expressly provided herein,
all covenants and agreements contained in this letter agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto whether so
expressed or not.
14. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this letter agreement shall be
in writing and shall be deemed to have been given when (i) delivered personally,
(ii) mailed by certified or registered mail, return receipt requested and
postage prepaid, (iii) sent by facsimile or (iv) sent by reputable overnight
courier, to the recipient. Such notices, demands and other communications shall
be sent to you at the address specified in this letter agreement and to the
Company at 11825 N. Pennsylvania Street, P.O. Box 1911 (46082), Carmel, Indiana
46032, Attn: General Counsel, or to such other address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party.
15. Governing Law. THE VALIDITY, CONSTRUCTION, INTERPRETATION,
ADMINISTRATION AND EFFECT OF THE PLAN, AND OF ITS RULES AND
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REGULATIONS, AND RIGHTS RELATING TO THE PLAN AND TO THIS LETTER AGREEMENT, SHALL
BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS, AND APPLICABLE PROVISIONS OF
FEDERAL LAW.
16. Descriptive Headings. The descriptive headings of this letter agreement
are inserted for convenience only and do not constitute a part of this letter
agreement.
17. Counterparts. This letter agreement may be executed simultaneously in
two or more counterparts, each of which shall constitute an original, but all of
which taken together shall constitute one and the same letter agreement.
18. Entire Agreement. This letter agreement, any written agreement between
you and the Company or a Subsidiary to the extent contemplated by paragraph 4
hereof, and the terms of the Plan constitute the entire understanding between
you and the Company, and supersede all other agreements, whether written or
oral, with respect to your acquisition of the Performance Units.
19. Section 409A. The Performance Units awarded hereunder are intended to
comply with Section 409A of the Code, as provided under Section 11(k) of the
Plan. In accordance therewith, to the extent that Section 409A(a)(2)(B)(i)
(regarding certain payments to "key employees" in connection with a separation
from service) requires the Company to delay payment and /or delivery of shares
of Common Stock in respect of your vesting Performance Units beyond the date(s)
otherwise specified in this letter agreement, the Company shall pay such amounts
to you upon the earliest date permitted under 409A(a)(2)(B)(i) of the Code.
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Signature Page to Performance Unit Award Agreement
Please execute the extra copy of this letter agreement in the space
below to confirm your understanding and acceptance of the agreements contained
in this letter agreement.
Very truly yours,
CONSECO, INC.
By:/s/Susan L. Menzel
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Name: Susan L. Menzel
Title: EVP Human Resources
Enclosures: Extra copy of this letter agreement
Copy of the Plan
The undersigned hereby acknowledges having read this letter agreement
and the Plan and hereby agrees to be bound by all provisions set forth herein
and in the Plan.
GRANTEE
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[name]
Dated as of: ____________, 2006
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Schedule A
to
Performance Unit Award Agreement
PERFORMANCE TARGETS
[to be completed]
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