Exhibit 10.30
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of the 6th
day of November, 2006 is between Conseco Services, LLC, an Indiana limited
liability company ("Company"), and Michael Dubes ("Executive").
WHEREAS, the Company and Executive entered into an Employment
Agreement dated June 20, 2005 and they now desire to amend and restate such
agreement.
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 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 amended 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 December 31, 2007 ("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, Conseco Insurance Group (with responsibility for
the overall management of Conseco Insurance Group), or in such other capacity as
the Chief Executive Officer of Conseco shall specify. Executive shall report to
the Chief Executive Officer of Conseco or such other executive of the Company or
Conseco as the Chief Executive Officer of Conseco may specify 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 Conseco and the board of directors of
Conseco (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 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 Four
Hundred Fifty-five Thousand Dollars ($455,000) 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 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 100% of Executive's Base Salary (the "Target
Bonus") and a maximum annual bonus of 200% 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
but in no event later than March 15 of the year following the year
with respect to which such bonus was payable. For purposes of
clarification, annual executive bonuses are generally paid on or
before March 15 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, the 2007 bonus will be paid
at the same time that similar payments are made to other Company
executives but in no event later than March 15 of the year following
the year with respect to which such bonus was payable if Executive
remains employed through the end of the Term. The performance
requirements for Target Bonuses will be based on financial and other
objective targets that the Board believes are reasonably attainable at
the time that they are set.
(c) In connection with his original employment agreement, Executive
received an award of options to purchase 40,000 shares of common stock
and an award of 10,000 shares of restricted stock. Executive will also
receive an award of an additional 25,000 shares of restricted stock
with the restrictions on all 25,000 shares to lapse on December 31,
2007, subject to continued employment by the Company. By entering into
this Agreement, Executive relinquishes any and all rights to receive
an award of 25,000 shares of performance restricted stock as provided
in the Employment Agreement between the Company and Executive dated
June 20, 2005.
(d) Executive previously secured residential housing in the
Indianapolis/Carmel area, which he utilizes as his primary residence.
In lieu of reimbursement of costs to sell Executive's home and in
addition to reimbursement of other relocation expenses, a bonus of
$100,000 was previously paid to Executive. In the event that Executive
voluntary resigns (other than With Reason) or the Company
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terminates Executive with Just Cause, Executive will repay such bonus
to the Company within 5 business days of such resignation or
termination except to the extent Executive is vested in such bonus.
The bonus shall vest as follows: 50% vested at the time Executive
purchased a residence in the Indianapolis/Carmel area which is used as
his primary residence and 50% shall vest on December 31, 2006 if
Executive remains employed by the Company as of such date.
(e) In addition to any bonus payable to him for 2007 pursuant to
Section 5(b) of this Agreement, Executive shall receive a bonus of
$600,000 payable on January 2, 2008 if he remains employed by the
Company through the end of the Term.
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 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 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).
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, his 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 within 10 business days shall pay Executive a
cash payment 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,
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Unpaid Bonus and Unpaid Vacation referred to sometimes together as the
"Accrued Amounts"), (iv) a pro-rata portion of the Target Bonus for
the year in which the termination for disability occurs, (v) the bonus
payable pursuant to Section 5(d) hereof (to the extent not already
paid) and (vi) one times his Base Salary). All options or restricted
stock held by Executive on the date of termination for disability
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.
(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 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, (c) must be disclosed
to enable Executive properly to perform his duties under this Agreement or (d)
was developed by Executive prior to his employment by the Company. 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
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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) 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, accident or health insurance products or services; (ii)
in any manner compete with the Company or any of its affiliates with respect to
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; (iii) 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 (iv) 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. 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) material breach by Executive of this Agreement not
cured 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 not cured within 15 days after
written notice to Executive by the Company, 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
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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 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; or
(vi) Any intentional wrongful act or omission by Executive
that results in the restatement of Conseco'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 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
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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, he may terminate employment with the
Company "With Reason" provided one or more of the following conditions
are met: (i) Executive is required to report to anyone other than the
Chief Executive Officer of Conseco (or such other executive of the
Company or Conseco as the Chief Executive Officer of Conseco may
specify) or the Board; (ii) any reduction in Executive's Base Salary
or Target Bonus without his consent, or (iii) 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 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 this Agreement and shall not
affect the determination of whether Executive's termination was for
Just Cause or With Reason.
11. Payments Following Termination.
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(a) In the event that Executive's employment is terminated by the
Company for Just Cause or if Executive voluntarily resigns, then the
Company within 10 business days 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 within 30
days (i) a cash 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 and (iii) the bonus payable pursuant to Section 5(d)
hereof (to the extent not already 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 a termination due to expiration of
the Term, death, disability or a Control Termination) or by Executive
With Reason, then the Company shall pay Executive within 10 business
days (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) the bonus payable pursuant
to Section 5(e) hereof (to the extent not already paid) and (iii) the
bonus payable pursuant to Section 5(d) hereof (to the extent not
already paid). In addition, (i) any options or restricted stock
granted to Executive in 2005 that would otherwise have vested within
12 months after the date of termination if Executive had remained
employed for such period shall also vest as of the date of termination
and (ii) the restricted stock granted to Executive in 2006 shall vest
as of the date of termination.
(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 within 30 days (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) his Target Bonus and two times his Base Salary (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 his termination of employment, (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 and (iv) the bonus payable pursuant to
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Section 5(d) hereof (to the extent not already 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.
(f) Notwithstanding anything to the contrary, payment of any
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 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
during the Term. 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 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
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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 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 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.
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.
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17. Entire Agreement. Other than any equity award agreements entered
into pursuant to the Conseco, Inc. 2003 Amended and Restated Long-Term Incentive
Plan or any subsequent 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, and upon termination
of Executive's employment with the Company Executive will not be entitled to
receive any severance or other payments beyond those specified in this
Agreement. 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 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 his 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.
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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
/s/Daniel J. Murphy
------------------------------------
Daniel J. Murphy
President
EXECUTIVE:
/s/Michael Dubes
------------------------------------
Michael Dubes
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