Exhibit 10.25
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT, dated as of the 17th day of August, 2007 is
between Conseco Services, LLC, an Indiana limited liability company ("Company"),
and Susan L. Menzel ("Executive").
WHEREAS, the Company and Executive entered into an Employment Agreement
dated May 3, 2005, and they now desire to amend and restate such agreement.
WHEREAS, the continued services of Executive and her 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 May 31, 2010 (the "Term"). The Term shall not be automatically renewed
and shall end upon any earlier termination of Executive's employment with the
Company.
3. Duties. During the Term, Executive shall be engaged by the Company in
the capacity of Executive Vice President, Human Resources of the Company and
Conseco. Executive shall report to the Chief Executive Officer of Conseco (or
such other senior officer of Conseco designated by the President or the Chief
Executive Officer of Conseco) regarding the performance of her duties.
4. Extent of Services. During the Term, subject to the direction and
control of the President or the Chief Executive Officer of Conseco or the
designee of any such officer, 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 he 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 noncompete and nonsolicitation provisions of
Section 9 hereof); provided, however, that corporate organizations shall be
limited to those mutually agreed upon by Executive and the Company.
5. Compensation. During the Term:
(a) As compensation for services hereunder rendered during the Term
hereof, Executive shall receive a base salary ("Base Salary") of Three
Hundred Twenty-Seven Thousand Six Hundred Dollars ($327,600) 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 her
Base Salary from time to time, based upon her performance, subject to
approval of the Company.
(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 or as
otherwise payable under Section 11 of this Agreement. Notwithstanding the
above, Executive will be entitled to a bonus for 2010 of an amount that is
not less than a pro-rata portion of the 2010 Target Bonus if Executive
remains employed through the end of the Term. The Target Bonuses will be
based on financial and other objective targets that the Company believes
are reasonably attainable at the time that they are set.
(c) Executive shall 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 of Directors of Conseco (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.
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(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 presentation of an itemized account of such expenditures.
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 three (3) 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 ("Unpaid Salary"), (ii) the bonus payable pursuant
to Section 5(b) for the fiscal year of the Company ending prior to the date of
termination (to the extent earned based on performance under the goals and
objectives of the applicable plan but not previously paid) ("Unpaid Bonus"),
(iii) Executive's then accrued but unused vacation ("Unpaid Vacation") (the
Unpaid Salary, Unpaid Bonus and Unpaid Vacation referred to sometimes together
as the "Accrued Amounts"), (iv) a pro rata Target Bonus for the year in which
the termination for Disability occurred, and (v) one times Base Salary. All
stock options, restricted stock and/or other awards held by Executive shall be
treated in accordance with the applicable grant agreements. 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 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.
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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
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 employee of the Company or any of its affiliates.
Should any particular covenant or provision of this Section 9 be held
unreasonable or contrary to public policy for any reason, including, without
limitation, the time period, geographical area, or scope of activity covered by
any restrictive covenant or provision, the Company and Executive acknowledge and
agree that such covenant or provision shall automatically be deemed modified
such that the contested covenant or provision shall have the closest effect
permitted by applicable law to the original form and shall be given effect and
enforced as so modified to whatever extent would be reasonable and enforceable
under applicable law.
10. Termination.
(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 the death of
Executive, (ii) after disability of Executive pursuant to Section 7 hereof
or (iii) 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
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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 three
(3) consecutive days, without consent from the Company prior to the
expiration of the three (3) 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.
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 Conseco 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
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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
after the date of this Agreement: (i) her role or duties have been
materially diminished by changes in responsibilities or authority; (ii) any
reduction in Executive's Base Salary or Target Bonus; (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); or (iv) there is a
"Change in Control" of the Company as defined in Section 10(c) and,
following Executive's written request made prior to the Change in Control,
the ultimate parent entity or entities directly or indirectly gaining
control of a majority of the Board or outstanding securities entitled to
vote with respect to the Board fails to affirm and guarantee the Company's
current and future obligations under this Agreement.
(e) Upon termination of Executive's employment with the Company for any
reason (whether voluntary or involuntary), Executive shall be deemed to
have voluntarily resigned from all positions that Executive may then hold
with the Company and any of its 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 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
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(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 expiration of the Term, death, disability or a
Control Termination) or by Executive With Reason, then the Company shall
pay Executive (i) on a basis consistent with the timing of the Company's
normal payroll processing, the remaining payments of Base Salary described
in Section 5(a) that would have been payable to Executive through the date
of her termination of employment, (ii) her Base Salary and Target Bonus (in
the form of salary continuation on a pro-rata basis with or without medical
and dental benefits, at the Executive's election and cost) for the 12-month
period following her termination of employment, 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. 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) one and one-half times the sum of
her Base Salary and Target Bonus (in the form of salary continuation on a
pro-rata basis with or without medical and dental benefits at the cost
charged to active employees) for the 12-month period following her
termination of employment 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. To the extent that
Executive is terminated in a Control Termination that occurs in
anticipation of a Change in Control, any options or restricted stock held
by Executive shall fully vest, retroactive to the date of termination, upon
the occurrence of the Change in Control.
(e) Notwithstanding anything to the contrary, in the event that
Executive's employment terminates, the Company shall pay to Executive, in
accordance with its standard payroll practice, Executive's accrued
vacation.
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(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 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. Character of Termination Payments. The amounts payable to Executive
upon any termination of her employment shall be considered severance pay in
consideration of past 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.
13. Representations of the Parties.
(a) The Company represents and warrants to Executive that (i) this
Agreement has been duly authorized, executed and delivered by the Company
and constitutes valid and binding obligations of the Company; and (ii) the
employment of Executive on the terms and conditions contained in this
Agreement will not conflict with, result in a breach or violation of,
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
pursuant to: (A) the certificate of formation, (B) the terms of any
indenture, contract, lease, mortgage, deed of trust, note, loan agreement
or other agreement, obligation, condition, covenant or 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.
14. 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
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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.
All reasonable costs and expenses (including fees and disbursements of
counsel) incurred by Executive pursuant to this Section 15 shall be paid on
behalf of or reimbursed to Executive promptly by the Company; provided,
however, that in the event the Company prevails in such proceedings,
Executive shall immediately repay all such amounts to the Company.
(b) Executive acknowledges that a breach or threatened breach by
Executive of Sections 8 or 9 of this Agreement will give rise to
irreparable injury to the Company and that money damages will not be
adequate relief for such injury. Notwithstanding paragraph (a) above, the
Company and Executive agree that the Company may seek and obtain injunctive
relief, including, without limitation, temporary restraining orders,
preliminary injunctions and/or permanent injunctions, in a court of proper
jurisdiction to restrain or prohibit a breach or threatened breach of
Section 8 or 9 of this Agreement. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available to the
Company for such breach or threatened breach, including the recovery of
damages from Executive.
15. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail to
her residence, in the case of Executive, or to the business office of its
General Counsel, in the case of the Company.
16. Waiver of Breach and Severability. The waiver by either party of a
breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by either party. In the
event any provision of this Agreement is found to be invalid or unenforceable,
it may be severed from the Agreement, and the remaining provisions of the
Agreement shall continue to be binding and effective.
17. Entire Agreement. Other than any equity award agreements entered into
pursuant to 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.
18. Binding Agreement and Governing Law; Assignment Limited. This Agreement
shall be binding upon and shall inure to the benefit of the parties and their
lawful successors in interest (including, without limitation, Executive's
estate, heirs and personal representatives)
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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.
19. 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 he
or 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 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 he 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.
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.
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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
By:/s/ Edward J. Bonach
---------------------------------
Edward J. Bonach
President
EXECUTIVE:
/s/ Susan L. Menzel
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Susan L. Menzel
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