Exhibit 10.25
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of the 3rd day of May, 2005 is
between Conseco Services, LLC, an Indiana limited liability company ("Company"),
and Susan L. Menzel ("Executive").
WHEREAS, the services of Executive and her managerial and professional
experience are of value to the Company.
WHEREAS, the Company desires to have the benefit and advantage of the
services of Executive for an extended period to assist the Company and its
parent, 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 May 30, 2005 (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 first anniversary of the Effective Date. The term of Executive's
employment shall be automatically renewed for successive one-year terms on May
30, 2006 and each succeeding May 30 unless either party elects not to renew this
Agreement by serving written notice of such election not to renew on the other
party at least 60 days prior to such May 30. As used in this Agreement, the
"Term" is the period ending on May 30, 2006 or, if this Agreement has been
renewed, the one-year period relating to the last renewal. 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 Executive Vice President, Human Resources. Executive shall
report to the President and Chief Executive Officer of Conseco.
4. Extent of Services. During the Term, subject to the direction and
control of the President of Conseco, Executive shall have the power and
authority commensurate with her executive status and necessary to perform her
duties hereunder. Executive shall devote her 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 she presently serves or may choose to serve or investing
her 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 nonsolicitation provisions of Section 9
hereof); provided, however, that for-profit 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 an initial base salary ("Base Salary")
of Three Hundred Thousand Dollars ($300,000) 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. The Base Salary shall be reviewed
at least annually at the same time as other senior executives, and
Executive may receive increases in her Base Salary from time to time,
based upon her performance, subject to approval of the Company. The
Base Salary, as in effect from time to time, may not be decreased.
(b) In addition to Base Salary, Executive will have an opportunity
to earn a bonus each year as determined by the Company, with a target
annual bonus equal to 50% of Executive's Base Salary (the "Target
Bonus") and a maximum annual bonus of 100% of Executive's Base Salary
with respect to any calendar year, with such bonus payable at such
time that other similar payments are made to other Company executives.
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. Notwithstanding the above, (i) Executive is
guaranteed a minimum bonus for the calendar year 2005 performance
period equal to One Hundred Fifty Thousand ($150,000) and (ii)
Executive's pro-rata bonus for her final year of employment 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
ending on May 30 of any year. The Target Bonus will be based on
financial and other objective targets that the Company reasonably
believes are reasonably attainable at the time that they are set.
(c) As soon as reasonably practicable, Executive will receive an
award of (i) options to purchase 50,000 shares of common stock with an
exercise price equal to the fair market value on the date of the grant
and (ii) 10,000 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, with one-fourth vesting on each
anniversary of such grant date. Fifty percent (50%) of the restricted
stock will vest on the second anniversary of the date of grant of the
restricted stock, with the other fifty percent (50%) vesting on the
third anniversary of such grant date. Executive shall also be eligible
to participate in and receive future grants under any stock option or
equity-based program offered by Conseco to senior executives, subject
to the discretion of the board of directors of Conseco, Inc. (the
"Board").
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6. Fringe Benefits. During the Term:
(a) Executive shall be entitled to participate in such existing
executive benefit plans and insurance programs offered by the Company,
or which it may adopt from time to time, for its executive management
or supervisory personnel generally, in accordance with the eligibility
requirements for participation therein. Nothing herein shall be
construed so as to prevent the Company from modifying or terminating
any executive benefit plans or programs, or executive fringe benefits,
that it may adopt from time to time.
(b) Executive shall be entitled to four weeks of vacation with pay
each year.
(c) Executive may incur reasonable expenses for promoting the
Company's business, including expenses for entertainment, travel, and
similar items. The Company shall reimburse Executive for all such
reasonable expenses upon Executive's periodic presentation of an
itemized account of such expenditures on a timely basis in accordance
with the Company's reimbursement policy. 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) Executive shall be entitled to reimbursement of the legal fees
incurred by Executive in connection with this Agreement.
7. Disability. If Executive shall become physically or mentally
disabled during the Term to the extent that her ability to perform her duties
and services hereunder is materially and adversely impaired, her Base Salary,
bonus and other compensation provided herein shall continue while she 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 a cash payment equal to (i) her annual
Base Salary as provided in Section 5(a) hereof to the extent earned but unpaid
as of the date of termination and (ii) a pro-rata portion of the Target Bonus
for the year in which her disability occurs plus the Target Bonus for the
preceding year if her disability occurs after year-end but before such bonuses
are paid. 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 (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 her employment with the Company, she 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
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Executive the compensation stated in Section 5, as well as any additional
benefits stated herein, Executive covenants and agrees that she shall not, at
any time while she 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 her as a result of her 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 her 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 she may have in her possession or
control.
9. Covenants Against Solicitation. Executive acknowledges that the
services she 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 (or
18 months in the event that Executive is receiving salary continuation pursuant
to Section 11(d)) 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 employ any individual who was
employed by the Company or any of its affiliates during the Term of this
Agreement. 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.
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10. Termination.
(a) Either the Company or Executive may terminate her 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
nonrenewal of the agreement, (ii) upon the death of Executive, (iii)
after disability of Executive pursuant to Section 7 hereof or (iv) by
Executive's termination of employment With Reason.
(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 not
cured to the Company's reasonable satisfaction within 15 days after
written notice to Executive by the Company, (B) a material breach of
Executive's duty of loyalty to the Company or its affiliates, 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 her 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 she 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 her 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 or
where Executive acts (or refrains from taking action) in good faith in
accordance with directions of a member of the board or higher ranking
executive but was unable to attain the desired results because such
results were inherently unreasonable or unattainable.
(c) The Company may terminate Executive's employment in a Control
Termination. A "Control Termination" shall mean any termination by the
Company (or its successor) of Executive's employment for any reason
within six months in anticipation of or within two years following a
Change in Control of the Company.
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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 Conseco or its Ultimate
Parent entitled to vote generally with respect to the election of
the board of directors of Conseco 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 Conseco (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 Conseco; or
(iii) the consummation of a merger, consolidation or
reorganization with or into Conseco unless (x) the stockholders of
Conseco immediately before such transaction beneficially own,
directly or indirectly, immediately following such transaction
securities representing 51% or more of the combined voting power of
the then outstanding securities entitled to vote generally with
respect to the election of the board of directors of Conseco (or
its successor) or, if applicable, the Ultimate Parent and (y)
individual board members of Conseco (identified as of the date that
a binding agreement providing for such transaction is signed)
constitute at least a majority of the board of directors of Conseco
(or its successor) or, if applicable, the Ultimate Parent (a
transaction to which clauses (x) and (y) apply, a "Non-Control
Transaction").
For purposes of this Agreement, "Ultimate Parent" shall mean the
parent corporation (or if there is more than one parent corporation,
the ultimate parent corporation) that, following a transaction,
directly or indirectly beneficially owns a majority of the voting
power of the outstanding securities entitled to vote with respect to
the election of the board of directors of Conseco (or its successor).
(d) At Executive's option, she may terminate employment with the
Company "With Reason" provided one or more of the following conditions
are met: (i) her role or duties have been materially diminished by
changes in responsibilities or authority; (ii) Executive is required
to report to anyone other than the President of Conseco; (iii)
Executive is required to relocate her residence without her consent
(recognizing that a significant portion of her time will be spent at
the Company's offices in Carmel, Indiana and in Philadelphia,
Pennsylvania); (iv) any reduction in Executive's Base Salary or Target
Bonus; (v) any change in Executive's title without her prior written
consent; (vi) a material breach by the Company of this Agreement not
cured to Executive's reasonable satisfaction within 15 days after
written notice to the Company by Executive; or (vii)
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there is a "Change in Control" as defined in Section 10(c) and,
following Executive's written request made prior to the Change in
Control, the ultimate parent entity or entities directly or indirectly
gaining control of a majority of Conseco's board of directors or
outstanding securities entitled to vote with respect to Conseco's
board of directors fails to affirm and guarantee the Company's current
and future obligations under this Agreement.
(e) Upon termination of Executive's employment with the Company for
any reason (whether voluntary or involuntary), Executive shall be
deemed to have voluntarily resigned from all positions that Executive
may then hold with the Company and any of its affiliates; provided
that such deemed resignation shall not adversely affect Executive's
rights to compensation or benefits under Section 11 of this Agreement
and shall not affect the determination of whether Executive's
termination was for Just Cause.
11. Payments Following Termination.
(a) In the event that Executive's employment is terminated by the
Company for Just Cause (as defined herein), upon non-renewal by the
Company or Executive, upon expiration of the Term of this Agreement or
Executive voluntarily resigns, then the Company immediately shall pay
Executive a cash payment of her 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 a cash
lump sum of the sum of (i) the remaining payments of Base Salary
described in Section 5(a) that would have been payable to Executive
through the date of death and (ii) a pro-rata portion of the Target
Bonus for the year in which her death occurs plus the Target Bonus for
the preceding year if her death occurs after year-end but before such
bonuses are paid. 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 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 or by non-renewal of
this Agreement by the Company, 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 her termination of employment, (ii) a cash lump sum equal to
her Base Salary and Target Bonus and (iii) a cash lump sum equal to a
pro-rata portion of the Target Bonus for the year in which the date of
termination occurs plus the Target Bonus for the preceding year if
termination occurs after year-end but before such bonuses are paid.
Executive shall also be entitled to medical benefits for 12 months at
active employee contribution rates and senior executive
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level outplacement services by a firm selected by Executive and
reasonably approve d by the Company. 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 (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 remaining payments of
Base Salary described in Section 5(a) that would have been payable to
Executive through the date of her termination of employment, (ii) a
cash lump sum equal to one and one-half times her Base Salary and
Target Bonus and (iii) a cash lump sum equal to a pro-rata portion of
the Target Bonus for the year in which the date of termination occurs
plus the Target Bonus for the preceding year if termination occurs
after year-end but before such bonuses are paid. Executive shall also
be entitled to medical benefits for 18 months at active employee
contribution rates and senior executive level outplacement services by
a firm selected by Executive and reasonably approved by the Company.
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 or provide to
Executive (i) in accordance with its standard payroll practice,
Executive's accrued vacation, (ii) any expenses for which she is
entitled to reimbursement, (iii) vested benefits under the Company's
employee benefit plans and (iv) continuation or conversion rights
under the Company's employee benefit plans, to the extent Executive
would otherwise be entitled to such rights under the terms of such
plans.
(f) Notwithstanding anything to the contrary, payment of severance
under this Agreement is conditioned upon the execution by Executive of
a separation and release agreement in a form acceptable to Executive
and the Company and the observation of such waiting or revocation
periods, if any, before and after execution of the agreement by
Executive as are required by law, such as, for example, the waiting or
revocation periods required for a waiver and release to be effective
with respect to claims under the Age Discrimination in Employment Act,
provided that the Company delivers to Executive such agreement within
seven days of the date of her termination.
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 her employment shall be considered severance
pay in consideration of past
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services rendered on behalf of the Company and her continued service from the
date hereof to the date she 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 her employment during the Term. Executive
shall have no duty to mitigate her damages by seeking other employment.
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 her
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 her
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 her 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 American Arbitration Association's
National Rules For The Resolution of Employment Disputes, 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. The arbitrators
shall have the discretionary authority to award costs, expenses and
fees, including reasonable legal fees,
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to the prevailing party. Except as otherwise awarded by the
arbitrators, 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
her 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 an applicable long-term incentive plan, this instrument
contains the entire agreement of the parties and, as of the Effective Date,
supersedes all other obligations of the Company and its affiliates under other
agreements or otherwise. The compensation and benefits to be paid under the
terms of this Agreement are in lieu of all other compensation or benefits to
which Executive is entitled from Conseco, the Company, and its affiliates. 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. Indemnification. If Executive was or is made a party or is
threatened to be made a party to or is otherwise involved (including involvement
as a witness) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that she
is or was an officer or employee of the Company or any of its affiliates,
Executive shall be indemnified and held harmless by the Company to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be
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amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
permitted prior thereto), against all expense, liability and loss (including
attorneys' fees, judgments, fines, excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by Executive in connection therewith
and such indemnification shall continue as to Executive if she ceases to be an
officer or employee and shall inure to the benefit of Executive's heirs,
executors and administrators; provided, however, that the Company shall
indemnify Executive in connection with a proceeding (or part thereof) initiated
by Executive only if such Proceeding (or part thereof) was authorized by the
board of directors of the Company. The right to indemnification conferred in
this paragraph shall include the obligation of the Company to pay the expenses
incurred in defending any such proceeding in advance of its final disposition
(an "Advance of Expenses"); provided, however, that, if and to the extent that
the Delaware General Corporation Law requires, an Advance of Expenses incurred
by Executive in her capacity as an officer or employee shall be made only upon
delivery to the Company of an undertaking, by or on behalf of Executive, to
repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal that Executive
is not entitled to be indemnified for such expenses under this paragraph or
otherwise.
21. 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.
22. Survival. This Agreement shall survive the end of the Term for as
long as necessary to carry out the provisions of this Agreement.
23. Construction. Each and every provision of this Agreement shall be
construed as though both parties participated equally in the drafting of this
Agreement.
24. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written, effective as of the Effective Date.
COMPANY:
CONSECO SERVICES, LLC
/s/Daniel J. Murphy
------------------------------------
Daniel J. Murphy
President
EXECUTIVE:
/s/Susan L. Menzel
------------------------------------
Susan L. Menzel
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