As filed with the Securities and Exchange Commission on June 7, 2002
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
CONSECO, INC.
(Exact name of registrant as specified in its charter)
Indiana 35-1468632
(State of Incorporation) (I.R.S. Employer
Identification No.)
11825 N. Pennsylvania Street
Carmel, Indiana 46032
(Address of Principal Executive Offices) (Zip Code)
Conseco, Inc. 2002 Subsidiary Director Stock Option Plan
(Full title of the plan)
David K. Herzog
11825 N. Pennsylvania Street
Carmel, Indiana 46032
(Name and address of agent for service)
(317) 817-5037
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate
Title of Securities to be Price Offering Amount of
to be Registered Registered Per Share Price Registration Fee
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Common Stock, no par value 150,000 (1) $2.49 (2) $373,500 (2) $34.36
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(1) Subject to increase (or decrease) in accordance with Rule 416 of
Regulation C to reflect a merger, consolidation, reorganization,
recapitalization, stock dividend, stock split or other change in the
corporate structure of the Registrant which results in a change in the
number of shares issuable pursuant to outstanding awards under the
Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of Regulation C, on the basis of
the average of the high and low prices of the shares of common stock
of the Registrant on June 6, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The documents listed below are hereby incorporated by reference into this
Registration Statement:
1. Annual Report on Form 10-K of Conseco, Inc. (the "Company" or the
"Registrant") for the year ended December 31, 2001.
2. Quarterly Report on Form 10-Q of the Company for the period ended March
31, 2002.
3. Current Reports on Form 8-K filed with the Securities and Exchange
Commission on February 8, 2002, February 21, 2002 and March 18, 2002.
4. Those portions of the Registrant's proxy statement dated April 30, 2002
that disclose information required under Part III of Form 10-K.
5. The description of the Company's common stock, no par value (the
"Common Stock"), contained in its Registration Statement on Form 8-A
filed with the Commission on August 27, 1986, including any reports
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for the purpose of updating such description.
All documents filed subsequent to the foregoing by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
------ -------------------------
(See Item 3)
Item 5. Interests of Named Experts and Counsel.
------ --------------------------------------
Certain legal matters in connection with the securities offered hereby will
be passed upon for the Company by David K. Herzog, Esq., Executive Vice
President and General Counsel of the Company. Mr. Herzog holds options to
purchase shares of Common Stock and owns shares of Common Stock indirectly.
Item 6. Indemnification of Directors and Officers.
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The Indiana Business Corporation Law grants authorization to Indiana
corporations to indemnify officers and directors from
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liability for their conduct if such conduct was in good faith and was in the
corporation's best interests or, in the case of directors, was not opposed to
such best interests, and permits the purchase of insurance in this regard. In
addition, the shareholders of a corporation may approve the inclusion of other
or additional indemnification provisions in the articles of incorporation and
by-laws.
The By-Laws of the Registrant provide for the indemnification of any person
made a party to any action, suit or proceeding by reason of the fact that he or
she is a director, officer or employee of the Registrant, if (a) such person is
wholly successful with respect to such action, suit or proceeding or (b) if such
person is determined to have acted in good faith, in what he or she reasonably
believed to be the best interests of Conseco or at least not opposed to its best
interests and, in addition, with respect to any criminal claim, is determined to
have had reasonable cause to believe that his or her conduct was lawful or had
no reasonable cause to believe that his or her conduct was unlawful. Such
indemnification shall be against the reasonable expenses, including attorneys'
fees, incurred by such person in connection with the defense of such action,
suit or proceeding and amounts paid in settlement. If such person was not wholly
successful, the determination of entitlement to indemnification shall be made by
one of the following methods, such method to be selected by the Board of
Directors: (a) by the Board of Directors by a majority vote of a quorum
consisting of directors who are not and have not been parties to the claim; (b)
by the majority vote of a committee duly designated by the Board of Directors,
consisting solely of two or more directors who are not and have not been parties
to the claim; and (c) by special legal counsel.
The above discussion of Conseco's Bylaws and the Indiana Business
Corporation Law is not intended to be exhaustive and is qualified in its
entirety by such Bylaws and the Indiana Business Corporation Law.
The Company has purchased directors and officers liabilities insurance
which would provide coverage against certain liabilities, including liabilities
under the securities laws.
Item 7. Exemption from Registration Claimed.
------ -----------------------------------
Not Applicable
Item 8. Exhibits.
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See the Exhibit Index immediately following the signature pages to this
Registration Statement.
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Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
Provided, however, that paragraphs (1)(i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference into this Registration Statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be
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deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Carmel, State of Indiana, on the 7th day of June,
2002.
CONSECO, INC.
By:/s/ William J. Shea
-------------------------------
William J. Shea
President
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears below
hereby appoints David K. Herzog and Karl W. Kindig, and each of them, either of
whom may act without the joinder of the other, as his or her attorney-in-fact to
sign on his or her behalf individually and in the capacity stated below and to
file all amendments and post-effective amendments to this Registration
Statement, which amendments may make such changes in and additions to this
Registration Statement as such attorney-in-fact may deem necessary or
appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signatures Title (Capacity) Date
---------- ---------------- ----
/s/ Gary C. Wendt
--------------------------- Chairman of the Board and Chief June 7, 2002
Gary C. Wendt Executive Officer
(Principal Executive Officer)
/s/ William J. Shea
--------------------------- President, Chief Operating June 7, 2002
William J. Shea Officer and Acting Chief
Financial Officer (Principal
Financial Officer)
/s/ James S. Adams
--------------------------- Senior Vice President, Chief June 7, 2002
James S. Adams Accounting Officer and
Treasurer(Principal Accounting
Officer)
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Signatures Title (Capacity) Date
---------- ---------------- ----
/s/ Julio A. Barea
--------------------------- Director June 7, 2002
Julio A. Barea
--------------------------- Director ____ _, 2002
Carol Bellamy
/s/ Lawrence M. Coss
--------------------------- Director June 7, 2002
Lawrence M. Coss
/s/ Thomas M. Hagerty
--------------------------- Director June 7, 2002
Thomas M. Hagerty
/s/ David V. Harkins
--------------------------- Director June 7, 2002
David V. Harkins
/s/ M. Phil Hathaway
--------------------------- Director June 7, 2002
M. Phil Hathaway
/s/ John M. Mutz
--------------------------- Director June 7, 2002
John M. Mutz
/s/ Robert S. Nickoloff
--------------------------- Director June 7, 2002
Robert S. Nickoloff
/s/ Samme Thompson
--------------------------- Director June 7, 2002
Samme Thompson
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EXHIBITS
Exhibit No.
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5(a) Opinion of Counsel re: legality
23(a) Consent of Counsel [See Exhibit 5(a)]
23(b) Consent of PricewaterhouseCoopers LLP