EMPLOYMENT AGREEMENT - James E. Hohmann

                                                                   Exhibit 10.19

 

                              EMPLOYMENT AGREEMENT

 

     This EMPLOYMENT AGREEMENT, dated as of 9th day of August, 2006, is between

Conseco, Inc., a Delaware corporation ("Company"), and James E. Hohmann

("Executive").

 

     WHEREAS, the services of Executive and his managerial and professional

experience are of value to the Company.

 

     WHEREAS, the Company desires to continue to have the benefit and advantage

of the services of Executive for an extended period to assist the Company 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

September 7, 2006 (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 December 31, 2008 (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 President and Chief Operating Officer of the Company. As such,

he will be accountable for duties customarily associated with that position.

Executive shall report to the Chief Executive Officer regarding the performance

of his duties.

 

     4. Extent of Services. During the Term, subject to the direction and

control of the Chief Executive Officer of the Company and the Board of Directors

of the Company (the "Board"), Executive shall have the power and authority

commensurate with his executive status and necessary to perform his duties

hereunder. Executive shall devote his entire employable time, attention and best

efforts to the business of the Company and, during the Term, shall not, without

the consent of the Company, be actively engaged in any other business activity,

whether or not such business activity is pursued for gain, profit or other

pecuniary advantage; provided, however, that, subject to Section 9 hereof, this

shall not be construed as preventing Executive from serving on boards of

professional, community, civic, education, charitable and corporate

organizations on which he presently serves or may choose to serve or investing

his assets in such form or manner as will not require any services on the part

of Executive in the operation of the affairs of the companies in which such

investments are made (to the extent not in violation of the noncompete listed in

Section 9 hereof); provided, however, that corporate organizations shall be

limited to those mutually agreed upon by Executive and the Company.

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     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 Six

     Hundred Thousand Dollars ($600,000) per year payable in equal installments

     in accordance with the Company's payroll procedure for its salaried

     executives. Salary payments and other payments under this Agreement shall

     be subject to withholding of taxes and other appropriate and customary

     amounts. Executive may receive increases in his Base Salary from time to

     time, based upon his performance, subject to approval of the Board or the

     Compensation Committee thereof.

 

          (b) In addition to Base Salary, Executive will have an opportunity to

     earn a bonus each year as determined by the Board or the Compensation

     Committee thereof, with a target annual bonus equal to 100% of Executive's

     Base Salary (the "Target Bonus") and a maximum annual bonus of 200% of his

     Base Salary with respect to any calendar year, with such bonus payable at

     such time that other similar payments are made to other Company executives.

     For purposes of clarification, annual executive bonuses are generally paid

     in March of the year following the year with respect to which such bonuses

     are payable, if Executive remains employed with the Company through such

     date or as otherwise payable under the Company's severance policy for

     senior officers. Performance requirements for Target Bonuses will be based

     on financial and other objective targets that the Board reasonably believes

     are reasonably attainable at the time that they are set.

 

          (c) On the Effective Date of this Agreement, Executive will receive an

     award of 10,000 shares of restricted stock (the "Restricted Stock Grant").

     One hundred percent (100%) of the Restricted Stock Grant will vest on

     December 31, 2008, subject to his continued employment hereunder until such

     date. Executive shall also be eligible to participate in and receive future

     grants under any stock option or equity-based program offered by the

     Company to executives of similar title and level of responsibility, subject

     to the discretion of the Board.

 

     6. Fringe Benefits. During the Term:

 

          (a) Executive shall be entitled to participate in such existing

     executive benefit plans and insurance programs offered by the Company, or

     which it may adopt from time to time, for its executive management or

     supervisory personnel generally, in accordance with the eligibility

     requirements for participation therein. Nothing herein shall be construed

     so as to prevent the Company from modifying or terminating any executive

     benefit plans or programs, or executive fringe benefits that it may adopt

     from time to time.

 

          (b) Executive shall be entitled to six weeks of vacation with pay each

     year and will not be eligible for any other paid-time-off program (other

     than paid holidays).

 

          (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

 

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     presentation of an itemized account of such expenditures. The Company

     agrees to pay Executive an additional amount to cover the incremental

     additional income taxes incurred by Executive, if any, with respect to

     payment or reimbursement of any reasonable business expenses pursuant to

     this subsection (c).

 

          (d) In lieu of any insurance on the life of Executive offered by the

     Company pursuant to Section 6(a) hereof, the Company shall reimburse

     Executive for up to $5,000 per year for premiums on term life insurance

     policies on the life of Executive as in effect on the date hereof.

 

     7. Disability.

 

          (a) If Executive shall become physically or mentally disabled during

     the Term to the extent that his ability to perform his duties and services

     hereunder is materially and adversely impaired, Executive's Base Salary,

     bonus and other compensation provided herein shall continue while he

     remains employed by the Company; provided, that if such disability (as

     determined in the Board's reasonable judgment, exercised in good faith)

     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 cash payments equal to (i) his annual Base

     Salary as provided in Section 5(a) hereof to the extent earned but unpaid

     as of the date of termination ("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 his Base Salary. All stock options, restricted stock

     and/or other awards held by Executive shall be treated in accordance with

     the applicable grant agreements or, in the case of equity award agreements

     granted prior to the Effective Date, as detailed in Executive's prior

     employment agreement dated November, 29, 2004.

 

          (b) No payments or vesting under this Section 7 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 his employment with the Company, he has been and will be making use

of, acquiring and/or adding to confidential information of the Company and its

affiliates of a special and unique nature and value. As a material inducement to

the Company to enter into this Agreement and to pay to Executive the

compensation stated in Section 5, as well as any additional benefits stated

herein, Executive covenants and agrees that he shall not, at any time while he

is employed by the Company or at any time thereafter, directly or indirectly,

divulge or disclose for any purpose

 

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whatsoever, any confidential information (whether or not specifically labeled or

identified as "confidential information"), in any form or medium, that has been

obtained by or disclosed to him as a result of his employment with the Company

and which the Company or any of its affiliates has taken appropriate steps to

safeguard, except to the extent that such confidential information (a) becomes a

matter of public record or is published in a newspaper, magazine or other

periodical available to the general public, other than as a result of any act or

omission of Executive, (b) is required to be disclosed by any law, regulation or

order of any court or regulatory commission, department or agency, in which

event Executive shall give prompt notice of such requirement to the Company to

enable the Company to seek an appropriate protective order or confidential

treatment, or (c) must be disclosed to enable Executive properly to perform his

duties under this Agreement. Upon the termination of Executive's employment,

Executive shall return such information (in whatever form) obtained from or

belonging to the Company or any of its affiliates which he may have in his

possession or control.

 

     9. Covenants Against Competition and Solicitation. Executive acknowledges

that the services he is to render to the Company and its affiliates are of a

special and unusual character, with a unique value to the Company and its

affiliates, the loss of which cannot adequately be compensated by damages or an

action at law. In view of the unique value to the Company and its affiliates of

the services of Executive for which the Company has contracted hereunder,

because of the confidential information to be obtained by, or disclosed to,

Executive as set forth in Section 8 above, and as a material inducement to the

Company to enter into this Agreement and to pay to Executive the compensation

stated in Section 5 hereof, as well as any additional benefits stated herein,

and other good and valuable consideration, Executive covenants and agrees that:

 

          (a) throughout the period Executive remains employed 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 knowingly employ

     any employee of the Company or any of its affiliates;

 

          (b) throughout the period Executive remains employed and for one year

     thereafter, Executive shall not, directly or indirectly, anywhere in the

     United States of America (i) render any services, as an agent, independent

     contractor, consultant or otherwise, or become employed or compensated by

     any other corporation, person or entity that derives a non-incidental

     portion of its revenue from the business of selling or providing long-term

     care or health-related insurance products or services or (ii) in any manner

     compete with the Company or any of its affiliates with respect to long-term

     care or health-related insurance lines of business; provided, however, that

     if Executive resigns, Executive may serve as a consultant (other than with

     respect to matters relating to long-term care or health insurance products

     or services) for such companies that the Chief Executive Officer of the

     Company consents to (such consent shall not be unreasonably withheld where

     actual competition is not, in the Chief Executive Officer's sole judgment,

     deemed to be significant or meaningful) and provided further that in the

     event Executive

 

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     serves as such a consultant, all severance payments and other ongoing

     obligations of the Company under this Agreement shall cease; or

 

          (c) throughout the Term or, if later, the period ending on the first

     anniversary following the date Executive terminates employment during the

     Term, Executive shall not, directly or indirectly, anywhere in the United

     States of America (i) render any services, as an agent, independent

     contractor, consultant or otherwise, or become employed or compensated by

     any other corporation, person or entity that derives a non-incidental

     portion of its revenue from the business of selling or providing annuity,

     life, or accident insurance products or services or (ii) in any manner

     compete with the Company or any of its affiliates with respect to annuity,

     life or accident lines of business that the Company and its affiliates

     derive more than a non-incidental portion of their revenue from or with

     respect to which the Company and its affiliates have made a significant

     investment in; provided, however, that if Executive resigns during the

     Term, Executive may serve as a consultant (other than with respect to

     matters relating to long-term care or health insurance products or

     services) for such companies that the Chief Executive Officer of the

     Company consents to (such consent shall not be unreasonably withheld where

     actual competition is not, in the Chief Executive Officer's sole judgment,

     deemed to be significant or meaningful) and provided further that in the

     event Executive serves as such a consultant, all severance payments and

     other ongoing obligations of the Company under this Agreement shall cease.

 

     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. During the Term:

 

          (a) Either the Company or Executive may terminate his employment at

     any time for any reason upon written notice to the other. The Company may

     terminate Executive's employment for Just Cause pursuant to Section 10(b)

     below or in a Control Termination pursuant to Section 10(c) below.

     Executive's employment shall also terminate (i) upon the death of Executive

     or (ii) after disability of Executive pursuant to Section 7 hereof.

 

          (b) The Company may terminate Executive's employment at any time for

     Just Cause. For purposes of this Agreement, "Just Cause" shall mean:

 

               (i) (A) a material breach by Executive of this Agreement, (B) a

          material breach of Executive's duty of loyalty to the Company or its

          affiliates, or (C) willful malfeasance or fraud or dishonesty of a

          substantial nature in performing Executive's services on behalf of the

          Company or its affiliates, which

 

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          in each case is willful and deliberate on Executive's part and

          committed in bad faith or without reasonable belief that such breach

          or action is in the best interests of the Company or its affiliates;

 

               (ii) Executive's use of alcohol or drugs (other than drugs

          prescribed to Executive by a physician and used by Executive for their

          intended purposes for which they had been prescribed) or other

          repeated conduct which materially and repeatedly interferes with the

          performance of his duties hereunder, which materially compromises the

          integrity or the reputation of the Company or its affiliates, or which

          results in other substantial economic harm to the Company or its

          affiliates;

 

               (iii) Executive's conviction by a court of law, admission that he

          is guilty, or entry of a plea of nolo contendere with regard to a

          felony or other crime involving moral turpitude;

 

               (iv) Executive's unscheduled absence from his employment duties

          other than as a result of illness or disability, for whatever cause,

          for a period of more than three (3) consecutive days, without consent

          from the Company prior to the expiration of the three (3) day period;

 

               (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, 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; or

 

               (vi) any intentional wrongful act or omission by Executive that

          results in the restatement of the Company's financial statements due

          to a violation of the Sarbanes-Oxley Act of 2002.

 

          No termination shall be deemed to be a termination by the Company for

     Just Cause if the termination is as a result of Executive refusing to act

     in a manner that would be a violation of applicable law.

 

          (c) The Company may terminate Executive's employment in a Control

     Termination. A "Control Termination" shall mean any termination by the

     Company (or its successor) of Executive's employment for any reason within

     six months in anticipation of or within two years following a Change in

     Control of the Company.

 

          The term "Change in Control" shall mean the occurrence of any of the

     following:

 

               (i) the acquisition (other than an acquisition in connection with

          a "Non-Control Transaction") by any "person" (as such term is used in

          Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as

          amended (the "1934 Act")) of "beneficial ownership" (as such term is

          defined in Rule 13d-3

 

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          promulgated under the 1934 Act), directly or indirectly, of securities

          of the Company or its Ultimate Parent representing 51% or more of the

          combined voting power of the then outstanding securities of the

          Company or its Ultimate Parent entitled to vote generally with respect

          to the election of the board of directors of the Company or its

          Ultimate Parent; or

 

               (ii) as a result of or in connection with a tender or exchange

          offer or contest for election of directors, individual board members

          of the Company (identified as of the date of commencement of such

          tender or exchange offer, or the commencement of such election

          contest, as the case may be) cease to constitute at least a majority

          of the board of directors of the Company; or

 

               (iii) the consummation of a merger, consolidation or

          reorganization with or into the Company unless (x) the stockholders of

          the Company immediately before such transaction beneficially own,

          directly or indirectly, immediately following such transaction

          securities representing 51% or more of the combined voting power of

          the then outstanding securities entitled to vote generally with

          respect to the election of the board of directors of the Company (or

          its successor) or, if applicable, the Ultimate Parent and (y)

          individual board members of the Company (identified as of the date

          that a binding agreement providing for such transaction is signed)

          constitute at least a majority of the board of directors of the

          Company (or its successor) or, if applicable, the Ultimate Parent (a

          transaction to which clauses (x) and (y) apply, a "Non-Control

          Transaction").

 

          For purposes of this Agreement, "Ultimate Parent" shall mean the

     parent corporation (or if there is more than one parent corporation, the

     ultimate parent corporation) that, following a transaction, directly or

     indirectly beneficially owns a majority of the voting power of the

     outstanding securities entitled to vote with respect to the election of the

     board of directors of the Company (or its successor).

 

          (d) At Executive's option, he may terminate employment with the

     Company "With Reason" provided one of more of the following conditions are

     met: (i) his role or duties have been materially diminished by changes in

     responsibilities or authority; (ii) Executive is required to report to

     anyone other than the Chief Executive Officer, the Board or a designated

     Committee thereof; (iii) Executive is required to relocate his primary

     office more than 25 miles from the Merchandise Mart in Chicago, Illinois,

     without Executive's consent, 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

     Company's Board or outstanding securities entitled to vote with respect to

     the Company's 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

 

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     affiliates; provided that such deemed resignation shall not adversely

     affect Executive's rights to compensation or benefits under this Agreement

     and shall not affect the determination of whether Executive's termination

     was for Just Cause or With Reason.

 

     11. Payments Following Termination.

 

          (a) In the event Executive's employment is terminated by the Company

     for Just Cause as so defined, or if Executive voluntarily resigns, then the

     Company immediately shall pay Executive a cash payment of his Base Salary

     as provided in Section 5(a) hereof that was earned but unpaid as of the

     date of termination. 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 (i) a lump sum of

     the remaining payments of Base Salary described in Section 5(a) that would

     have been payable to Executive through the date of death, (ii) a pro-rata

     portion of the Target Bonus for the year in which his death occurs plus the

     Target Bonus for the preceding year if his death occurs after year-end but

     before such bonuses are paid. Except as provided for in equity award

     agreements granted prior to the Effective Date (as modified by Executive's

     prior employment agreement dated November, 29, 2004) 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.

 

          (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, then the Company shall pay

     Executive (i) on a basis consistent with the timing of the Company's normal

     payroll processing, the remaining payments of Base Salary described in

     Section 5(a) that would have been payable to Executive through the date of

     his termination of employment, (ii) a pro-rata portion of the Target Bonus

     for the year in which his termination occurs plus the Target Bonus for the

     preceding year if his termination occurs after year-end but before such

     bonuses are paid, and (iv) twelve (12) months of his Base Salary plus

     Target Bonus (in the form of salary continuation on a pro-rata basis with

     or without medical and dental benefits, at Executive's election and cost).

     Except as provided for in equity award agreements, granted prior to the

     Effective Date (as modified by Executive's prior employment agreement dated

     November, 29, 2004) 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.

 

          (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

 

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     remaining payments of Base Salary described in Section 5(a) that would have

     been payable to Executive through the date of his termination of

     employment, (ii) a pro-rata portion of the Target Bonus for the year in

     which his termination occurs plus the Target Bonus for the preceding year

     if his termination occurs after year-end but before such bonuses are paid,

     and (iii) twenty-four (24) months of his Base Salary and Target Bonus (in

     the form of salary continuation on a pro-rata basis with or without medical

     and dental benefits, at Executive's election and cost). 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.

 

          (f) Notwithstanding anything to the contrary, payment of any

     post-termination moneys or benefits under this Agreement is conditioned

     upon the execution by Executive of a separation and release agreement, in a

     form that is consistent in all material respects with the provisions and

     protections set forth herein and reasonably acceptable to the Company and

     Executive, 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 his

     termination.

 

     12. Character of Termination Payments. The amounts payable to Executive

upon any termination of his employment shall be considered severance pay in

consideration of past services rendered on behalf of the Company and his

continued service from the date hereof to the date he becomes entitled to such

payments and shall be the sole amount of severance pay to which Executive is

entitled from the Company and its affiliates upon termination of his employment.

Executive shall have no duty to mitigate his damages by seeking other employment

and, should Executive actually receive compensation from any such other

employment, the payments required hereunder shall not be reduced or offset by

any such other compensation.

 

     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

 

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     instrument to which the Company is a party or bound or to which its

     property is subject, or (C) any statute, law, rule, regulation, judgment,

     order or decree applicable to the Company, or any regulatory body,

     administrative agency, governmental body, arbitrator or other authority

     having jurisdiction over the Company.

 

          (b) Executive represents and warrants to the Company that: (i) this

     Agreement has been duly executed and delivered by Executive and constitutes

     a valid and binding obligation of Executive; and (ii) neither the execution

     of this Agreement by Executive nor his employment by the Company on the

     terms and conditions contained herein will conflict with, result in a

     breach or violation of, or constitute a default under any agreement,

     obligation, condition, covenant or instrument to which Executive is a party

     or bound or to which his property is subject, or any statute, law, rule,

     regulation, judgment, order or decree applicable to Executive of any court,

     regulatory body, administrative agency, governmental body, arbitrator or

     other authority having jurisdiction over Executive or any of his property.

 

     14. Arbitration of Disputes; Injunctive Relief.

 

          (a) Arbitration. 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

     Chicago, Illinois in accordance with the laws of the State of Illinois 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 Northern District

     of Illinois if the arbitration is in Chicago, Illinois. The arbitration

     shall be conducted in accordance with the rules of the American Arbitration

     Association, except with respect to the election 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 14 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.

 

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     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

his 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 the Conseco, Inc. 2003 Long-Term Equity Incentive Plan or any

subsequent equity incentive plan, this instrument contains the entire agreement

of the parties and, as of the Effective Date, supersedes all other obligations

of the Company and its affiliates under other agreements or otherwise. 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

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) 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 Illinois. 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. 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.

 

     20. 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.

 

 

                                    * * * * *

 

                                       11

<PAGE>

 

 

 

 

 

     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date

first above written, effective as of the Effective Date.

 

 

                                          COMPANY:

                                          CONSECO, INC.

 

                                          /s/ R. Glenn Hilliard

                                          -------------------------------------

                                          R. Glenn Hilliard

                                          Chairman of the Board

 

 

                                          EXECUTIVE:

 

                                          /s/ James E. Hohmann

                                          -------------------------------------

                                          James E. Hohmann

 

 

 

 

 

 

 

 

 

 

 

                                       12

</TEXT>

</DOCUMENT>