<PAGE> 1
Registration No. 33-
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. Deferred Compensation Plan
(Full title of the plan)
Stephen C. Hilbert
11825 N. Pennsylvania Street
Carmel, Indiana 46032
(Name and address of agent for service)
(317) 573-6100
(Telephone number, including area code, of agent for service)
With a copy to:
Lawrence W. Inlow, Esq.
Conseco, Inc.
11825 N. Pennsylvania Street
Carmel, Indiana 46032
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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
- -------------------- ---------- --------- -------- ----------------
<S> <C> <C> <C> <C>
Common Stock, no par value 150,000 shares (1) $41 (2) $6,150,000 (2) $2,121
Interests in the Deferred Compensation Plan (3) (4) (4) (4)
<FN>
(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 December 9, 1994.
(3) Pursuant to Rule 416(c) of Regulation C, there are hereby registered
on this Registration Statement an indeterminate amount of interests
in the Plan.
(4) Pursuant to Rule 457(h)(2) of Regulation C, no separate fee is
required with respect to interests in the Plan.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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, 1993.
2. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of its fiscal
year ended December 31, 1993.
3. The description of the Company's Common Stock contained in
its Registration Statement on Form 8-A filed with the
Commission on August 27, 1986.
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 Lawrence W. Inlow, Esq.,
Executive Vice President, General Counsel and Secretary of the Company. Mr.
Inlow holds options to purchase 662,000 shares of Common Stock and owns 247,076
shares directly.
Item 6. Indemnification of Directors and Officers.
The Indiana Business Corporation Law grants authorization to Indiana
corporations to indemnify officers and directors from 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.
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The Code of By-Laws of the Registrant provides for the
indemnification of any person made a party to any action, suit or proceeding
by reason of the fact that he is a director, officer or employee of the
Registrant, unless it is adjudged in such action, suit or proceeding that such
person is liable for negligence or misconduct in the performance of his duties.
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. In some circumstances, the Registrant may
reimburse any such person for the reasonable costs of settlement of any such
action, suit or proceeding, if a majority of the members of the Board of
Directors not involved in the controversy shall determine that it was in the
interests of the Registrant that such settlement be made and that such person
was not guilty of negligence or misconduct.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
See the Exhibit Index immediately following the signature page to
this Registration Statement.
Item 9. Undertakings.
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;
(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 Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
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<PAGE> 4
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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.
<PAGE>
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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 15th day of
December, 1994.
CONSECO, INC.
By: /S/ Stephen C. Hilbert
----------------------
Stephen C. Hilbert,
Chairman of the Board
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.
<TABLE>
<CAPTION>
Signatures Title (Capacity) Date
---------- ---------------- ----
<S> <C> <C>
/S/ Stephen C. Hilbert Chairman of the Board, President December 15, 1994
- ----------------------- and Chief Executive Officer
Stephen C. Hilbert (Principal Executive Officer)
/S/ Rollin M. Dick Executive Vice President, December 15, 1994
- ----------------------- Chief Financial Officer and
Rollin M. Dick Director (Principal Financial
Officer and Principal Accounting
Officer)
/S/ Michael G. Browning Director December 15, 1994
- ------------------------
Michael G. Browning
/S/ Ngaire E. Cuneo Executive Vice President, December 15, 1994
- ------------------------ Corporate Development and Director
Ngaire E. Cuneo
- ------------------------- Director December , 1994
Louis P. Ferrero
/S/ Donald F. Gongaware Executive Vice President, Chief December 15, 1994
- ------------------------- Operations Officer and Director
Donald F. Gongaware
- ------------------------- Director December , 1994
M. Phil Hathaway
- ------------------------- Director December , 1994
James D. Massey
- ------------------------- Director December , 1994
Dennis E. Murray, Sr.
</TABLE>
<PAGE>
<PAGE> 6
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Plan
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 December 15, 1994.
Deferred Compensation Plan
By: Conseco, Inc., its Administrator
By: /S/ Stephen C. Hilbert
------------------------
Stephen C. Hilbert,
Chairman of the Board
<PAGE>
<PAGE> 7
EXHIBITS
Exhibit No.
5(a) Opinion of Counsel re: legality
23(a) Consent of Counsel [See Exhibit 5(a)]
23(b) Consent of Independent Accountants
28(a) Deferred Compensation Plan
<PAGE> 1
December 13, 1994
Board of Directors
Conseco, Inc.
11825 N. Pennsylvania Street
Carmel, Indiana 46032
Re: Conseco, Inc.
Registration Statement on Form S-8
Deferred Compensation Plan
Gentlemen and Madam:
I am Executive Vice President and General Counsel for Conseco, Inc.,
an Indiana corporation (the "Company"), and in such capacity, I exercise
general supervision over the Company's legal affairs. I and lawyers over whom
I exercise general supervision have acted as counsel to the Company in
connection with the registration of shares of common stock, no par value, of
the Company to be issued in connection with the Conseco, Inc. Deferred
Compensation Plan. In connection with our representation, we have examined
the corporate records of the Company, including its Amended and Restated
Articles of Incorporation, as amended, By-Laws and other corporate records and
documents and have made such other examinations as we consider necessary to
render this opinion. Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Indiana.
2. The Plan and the shares of common stock covered by the Plan
have been duly authorized by all requisite corporate
action.
3. With respect to the authorized but unissued shares of
common stock covered by the Plan, such shares, when issued
in accordance with the terms and provisions for their
issuance, will be legally issued, fully paid and
non-assessable.
I consent to the filing of this opinion as an exhibit to the
registration statement referred to above and to all references to me in such
registration statement.
Very truly yours,
/s/ Lawrence W. Inlow
----------------------
LAWRENCE W. INLOW
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of the shares of common stock of Conseco, Inc., covered by the
Conseco, Inc. Deferred Compensation Plan, of our reports dated March 24, 1994,
on our audits of the consolidated financial statements and financial statement
schedules of Conseco, Inc. and Subsidiaries, which reports are included in the
Annual Report on Form 10-K of Conseco, Inc. for the year ended December 31,
1993.
COOPERS & LYBRAND
Indianapolis, Indiana
December 16, 1994
<PAGE> 1
Conseco, Inc. Deferred Compensation Plan
Effective as of January 1, 1995
Article I. Introduction and Purpose of Plan
1.1 Establishment of the Plan. Conseco, Inc. an Indiana
corporation (the "Company") hereby establishes a deferred compensation plan for
certain of its eligible Employees known as the "CONSECO, INC. DEFERRED
COMPENSATION PLAN" (the "Plan"), which Plan is effective as of January 1, 1995.
1.2 Purpose. The purpose of the Plan is to provide a
Participant with a retirement income based on Employer contributions and
Participant salary deferrals. The Plan is intended to provide unfunded,
deferred compensation benefits to a select group of management or highly
compensated employees within the meaning of Section 201(2) of the Employee
Retirement Income Security Act of 1974, as amended.
1.3 Application of the Plan. The provisions of this Plan are
applicable only for Participants who are in the active employ of an Employer
on or after January 1, 1995.
Article II. Definitions
Whenever used in the Plan, the following terms shall have the
meanings as set forth in this Article II.
2.1 "Administrator" means a committee consisting of the Chief
Financial Officer, Chief Operations Officer and General Counsel of the Company.
2.2 "Beneficiary" means the person, persons, or legal entity
entitled to receive benefits under this Plan which become payable in the event
of the Participant's death, as provided in Article VIII.
2.3 "Board" means the Board of Directors of the Company or a
duly constituted committee thereof.
2.4 "Company Stock" means the shares of common stock of the
Company.
2.5 "Compensation" means the total amount of authorized base
salary plus cash bonuses earned by an Employee for personal services rendered
to an Employer for the calendar year.
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2.6 "Deferral" means the annual amount of Compensation that a
Participant elects to defer pursuant to a properly executed Voluntary Salary
Deferral Agreement.
2.7 "Disability" means a Participant's total and permanent
disability, as determined in accordance with the long term disability plan
applicable to the Participant. Disability shall not be deemed to have occurred
if it results from a Participant's engagement in a criminal activity, habitual
drunkenness, addiction to narcotics, or from an intentionally self-inflicted
injury.
2.8 "Early Retirement" means the Participant's termination of
employment following attainment of age fifty-five (55) and completion of five
(5) years of service with an Employer.
2.9 "Employee" means any common law employee of an Employer.
2.10 "Employer" means the Company and such Subsidiaries of the
Company as are named as Employers by the Administrator.
2.11 "Employer Contribution Account" means an account
established for bookkeeping purposes only to reflect each Participant's
Employer Contributions pursuant to Section 5.1 of this Plan. Each
Participant's Employer Contributions for each calendar year shall be converted
to Units as of the last day of such calendar year by dividing the total amount
of Employer Contributions for the calendar year by the average price of one
share of Company Stock for the calendar year which shall be determined by
averaging the closing price of one share of Company Stock each day to obtain
a monthly average price, and averaging the monthly average prices to obtain an
annual average price, and shall thereafter be accounted for solely in Units,
except with respect to an amount representing a fractional share. In the event
the Company declares cash dividends with respect to Company Stock, each
Participant's Employer Contribution Account shall be credited with additional
Units equal to the number determined by dividing the dollar value of the cash
dividend that would have been attributable to the number of Units in that
Participant's Employer Contribution Account had the Units in fact been Company
Stock by the value of the Company Stock on the date the cash dividend was
declared.
2.12 "Normal Retirement" means the Participant's termination of
employment following attainment of age sixty (60).
2.13 "Participant" means an Employee or former Employee who has
been enrolled in this Plan and who has an account under the Plan.
2.14 "Plan" means the Conseco, Inc. Deferred Compensation Plan
as set forth herein and as it may be amended from time to time.
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2.15 "Plan Year" means the period from January 1 through
December 31.
2.16 "Retirement" means Early Retirement or Normal Retirement.
2.17 "Salary Deferral Account" means an account established for
bookkeeping purposes only to reflect each Participant's Deferrals under this
Plan. Each Participant's Salary Deferral Account will earn a rate of return
each calendar year which is determined with reference to an index to be
selected by the Administrator prior to the beginning of that year. Such
interest will be credited to each Participant's Salary Deferral Account
monthly.
2.18 "Subsidiary" means any entity that is more than fifty
percent (50%) owned by the Company.
2.19 "Units" means an amount of deferred compensation having
reference to Company Stock with one Unit referencing one share of Company
Stock. The maximum number of Units that may be allocated to the Employer
Contribution Account of all Participants under the Plan in the aggregate shall
be 150,000 Units. Such maximum number shall be adjusted as appropriate to
reflect any stock dividend, stock split, recapitalization, merger or other
similar event affecting the Company.
2.20 "Voluntary Salary Deferral Agreement" means the agreement
between a Participant and an Employer to defer receipt by the Participant of
Compensation not yet earned. Such agreement shall state the Deferral amount
to be withheld from a Participant's pay and shall become effective no earlier
than the first day of the Plan Year following the execution of such agreement
except as otherwise designated by the Administrator.
Article III. Participation in the Plan
3.1 Eligibility. Each Employee who received Compensation in
excess of an amount determined annually by the Administrator, in its complete
discretion, prior to the beginning of each Plan Year (provided, however, that
such amount shall not be less than $100,000) in the prior Plan Year shall be
eligible to participate in the Plan on the first day of the Plan Year. In
addition, any Employee designated by the Board shall be eligible to participate
in the Plan on such date as is designated by the Administrator.
Notwithstanding the foregoing, no person shall be a Participant in the Plan for
any Plan Year if such person has been designated as a participant to receive
awards under Article XII of the Conseco, Inc. 1994 Stock and Incentive Plan for
such Plan Year.
<PAGE>
<PAGE> 4
3.2 Enrollment. Eligible Employees may enroll in the Plan by
completing an annual Voluntary Salary Deferral Agreement and submitting it to
the Administrator. Except as specifically so designated by the Administrator,
each annual Voluntary Salary Deferral Agreement must be submitted prior to the
first day of the calendar year to which it relates in order to be effective for
that year, and shall be irrevocable for such Plan Year, once made.
3.3 Duration of Participation. An Employee who becomes a
Participant shall be eligible to continue to actively participate in the Plan
and elect Deferrals until such person's termination of employment, or until the
first day of any calendar year following a calendar year in which the
Participant does not receive Compensation in excess of $100,000 (or such other
figure as is determined by the Administrator prior to the beginning of any Plan
Year); provided, however, the Board may continue eligibility to participate at
its discretion.
Article IV. Deferral of Compensation
4.1 Deferrals. By completing a Voluntary Salary Deferral
Agreement, an eligible Participant may defer any half percentage of
Compensation for the calendar year. Amounts deferred shall be allocated to the
Participant's Salary Deferral Account on the last day of each month.
4.2 Modifications to Amount Deferred. A Participant may change
Deferrals with respect to Compensation for the next calendar year by submitting
a new properly executed Voluntary Salary Deferral Agreement to the
Administrator prior to the first day of that calendar year.
Article V. Employer Contributions
5.1 Employer Contributions.
(a) Fixed Contribution.
The Employer shall make a matching contribution
on behalf of each Participant for the calendar year equal to one hundred
percent (100%) of the Participant's Deferrals not in excess of three percent
(3%) of the Participant's Compensation for that year.
(b) Profit Sharing Contribution.
Prior to the first day of each year, the Board
shall establish two performance goals (hereinafter sometimes referred to as
Target I and Target II) for that year based on the Company's targeted operating
results. Once established, the Board, in its sole discretion, may revise such
performance goals at any time to take into account occurrences other than those
occurrences in the ordinary course of business for the year. If a performance
goal for a calendar year is reached, the Employer shall make a matching
contribution on behalf of each Participant for the calendar year as follows:
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<PAGE> 5
(1) For each such Class 1 Participant, a
matching contribution equal to one hundred percent (100%) of the Participant's
Deferrals not in excess of five percent (5%) of the Participant's Compensation
for that year if Target I is reached and an additional matching contribution
of one hundred percent (100%) of the Participant's Deferrals not in excess of
five percent (5%) of the Participant's Compensation for that year if Target II
is reached.
(2) For each such Class 2 Participant, a
matching contribution equal to one hundred percent (100%) of the Participant's
Deferrals not in excess of three and three-fourths percent (3.75%) of the
Participant's Compensation for that year if Target I is reached and an
additional matching contribution of one hundred percent (100%) of the
Participant's Deferrals not in excess of three and three-fourths percent
(3.75%) of the Participant's Compensation for that year if Target II is
reached.
(3) For each such Class 3 Participant, a
matching contribution of one hundred percent (100%) of the Participant's
Deferrals not in excess of two and one-half percent (2.5%) of the Participant's
Compensation for that year if Target I is reached and an additional matching
contribution of one hundred percent (100%) of the Participant's Deferrals not
in excess of two and one-half percent (2.5%) of the Participant's Compensation
for that year if Target II is reached.
Participants shall be assigned to Classes 1 - 3 by the Board in its sole
discretion prior to the beginning of each Plan Year, subject to modification
at any time by the Administrator in its sole discretion.
(c) Discretionary Contributions.
Notwithstanding anything herein to the contrary,
the Employer may in its sole discretion make additional Employer Contributions
to be allocated as the Employer shall determine in its sole discretion.
(d) Timing of Allocation of Contributions.
Employer Contributions shall be allocated to each
eligible Participant's Employer Contribution Account effective as of the last
day of the calendar year to which the contributions relate.
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Article VI. Vesting
The value of each Employer Contribution made on behalf of a
Participant pursuant to Section 5.1 shall vest on the earlier of the following:
(i) the Participant's death, (ii) the Participant's Disability, (iii) the
Participant's Retirement, or (iv) the fourth anniversary of the last day of the
calendar year for which that contribution was made, provided that the
Participant has been an Employee of the Employer or an affiliate of the
Employer continuously from the date when the contribution was made until that
date. Each Participant's Salary Deferral Account shall be one hundred percent
(100%) vested at all times.
Article VII. Distribution of Benefits
7.1 Commencement of Payment.
(a) Distribution of a Participant's Salary Deferral
Account shall be made in cash beginning as soon as administratively feasible
following the earlier of (i) Separation from Service, or (ii) the fourth
anniversary of the last day of the Plan Year in which the Deferrals were made
unless the Participant elects an additional four (4)-year deferral in writing
prior to that date and immediately preceding each subsequent four (4)-year
anniversary of that date thereafter.
(b) Distribution of one-half (1/2) of each Employer
Contribution shall be made in Company Stock and cash in lieu of fractional
shares (or all in cash if so determined by the Administrator in its complete
discretion or in the event no exemption from registration has been obtained or
no registration has been made of the Company Stock under the federal or any
state securities laws) beginning as soon as administratively feasible following
the earlier of (i) the later of the Participant's Separation from Service or
attainment of age sixty (60), or (ii) the fourth anniversary of the last day
of the Plan Year for which the Employer Contribution was made unless the
Participant elects an additional four (4)-year deferral in writing prior to
that date and immediately preceding each subsequent four (4)-year anniversary
of that date thereafter.
(c) Distribution of the vested portion of a
Participant's Employer Contribution Account not distributed pursuant to Section
7.1(b) shall be made in Company Stock and cash in lieu of fractional shares (or
all in cash if so determined by the Administrator in its complete discretion
or in the event no exemption from registration has been obtained or no
registration has been made of the Company Stock under the federal or any state
securities laws) beginning as soon as administratively feasible following the
later of the Participant's Separation from Service or attainment of age sixty
(60).
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(d) "Separation from Service" means the severance of
a Participant's employment with the Employer for any reason, including
Retirement, Disability or death. The non-vested portion of a Participant's
Employer Contribution Account shall be forfeited upon a Participant's
Separation from Service for reasons other than the Participant's Retirement,
Disability or death.
7.2 Manner of Distributions.
(a) Distribution of a Participant's Salary Deferral
Account from the Plan shall be made in a lump sum; provided, however, that if
distribution is made as a result of a Participant's Separation from Service,
the Participant may irrevocably elect equal annual installments over a period
of up to ten (10) years in writing prior to the Participant's Separation from
Service.
(b) Distribution of the vested portion of a
Participant's Employer Contribution Account shall be made in a lump sum;
provided, however, that if distribution is made as a result of a Participant's
Separation from Service, the Participant may irrevocably elect equal annual
installments over a period of up to ten (10) years in writing prior to the
Participant's Separation from Service or, for a Participant who Separates from
Service for reasons other than Retirement or Disability, prior to the later of:
(i) the Participant's Separation from Service, or (ii) the Participant's
fifty-ninth (59th) birthday. However, notwithstanding anything herein to the
contrary, distributions resulting from Early Retirement shall be made in a lump
sum at age sixty (60) unless the Participant irrevocably elects equal annual
installments over a period of not less than five (5) years nor more than ten
(10) years in writing prior to the Participant's Early Retirement; provided,
however, that if the Participant shall obtain a position with a competing
company or with a company in a competing industry prior to the Participant's
attainment of age sixty (60), the Participant shall forfeit that portion of his
Employer Contribution Account which would not have been vested upon the
Participant's Separation from Service but for the Participant's Early
Retirement.
7.3 Death Distributions. In the event a Participant dies prior
to distribution of his or her benefit pursuant to Section 7.2, the
Participant's Salary Deferral Account and the Participant's Employer
Contribution Account shall be distributed to the Participant's Beneficiary in
a lump sum as soon as administratively feasible following the Participant's
death. Distribution of the Participant's Salary Deferral Account shall be made
in cash while the vested portion of the Participant's Employer Contribution
Account shall be distributed in Company Stock.
<PAGE>
<PAGE> 8
Article VIII. Beneficiary Information
8.1 Designation. A Participant shall have the right to
designate a Beneficiary and amend or revoke such designation at any time, in
writing. Such designation, amendment or revocation shall be effective upon
receipt by the Administrator. If no Beneficiary is designated as provided
above, the person, persons or legal entity designated by the Participant to
receive benefits under the ConsecoSave Plan shall be considered the designated
Beneficiary.
8.2 Failure to Designate a Beneficiary. If no designated
Beneficiary survives the Participant and benefits are payable following the
Participant's death, the Administrator shall direct that payment of benefits
be made to the person or persons in the first of the following classes of
successive preference Beneficiaries.
The Participant's:
(a) spouse,
(b) children, per stirpes,
(c) parents,
(d) brothers and sisters,
(e) estate.
Article IX. Administration and General Provisions.
9.1 Administration. The Administrator shall be charged with the
administration and interpretation of the Plan but may delegate the ministerial
duties hereunder to such persons as it determines. The Administrator may adopt
such rules as may be necessary or appropriate for the proper administration of
the Plan. The decision of the Administrator in all matters involving the
interpretation and application of the Plan shall be final and shall be given
the maximum possible deference allowed by law.
9.2 Funding of the Plan. Benefits under the Plan shall be paid
out of the general assets of the Employer. Benefits payable under the Plan
shall be reflected on the account records of the Employer but shall not be
construed to create or require the creation of a trust, custodial, or escrow
account. No Employee or Participant shall have any right, title, or interest
whatever in or to any investment reserves, accounts, or funds that the Employer
may purchase, establish, or accumulate to aid in providing benefits under the
Plan. Nothing contained in the Plan, and no action taken pursuant to its
provisions, shall create a trust or fiduciary relationship of any kind between
the Employer and an Employee or any other person. Neither a Participant nor
survivor or beneficiary of an Employee shall acquire any interest greater than
that of an unsecured creditor.
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<PAGE> 9
9.3 Payment of Expenses. The expenses of administering the
Plan shall be paid by the Employer.
9.4 Indemnity for Liability. The Employer shall indemnify the
Administrator, and each other person acting at the direction of the
Administrator, against any and all claims, losses, damages, expenses, including
counsel fees, incurred by such persons and any liability, including any amounts
paid in settlement with the Administrator's approval, arising from such
person's action or failure to act, except when the same is judicially
determined to be attributable to the gross negligence or willful misconduct of
such person.
9.5 Incompetence. Every person receiving or claiming benefits
under the Plan shall be conclusively presumed to be mentally competent until
the date on which the Administrator receives a written notice, in a form and
manner acceptable to the Administrator, that such person is incompetent, and
that a guardian, conservator, or other person legally vested with the care
of such person's person or estate has been appointed; provided, however, that
if the Administrator shall find that any person to whom a benefit is payable
under the Plan is unable to care for such person's affairs because of
incompetency, any payment due (unless a prior claim therefor shall have been
made by a duly appointed legal representative) may be paid as provided in the
ConsecoSave Plan. Any such payment so made shall be a complete discharge of
liability therefor under the Plan.
9.6 Nonalienation. No benefit payable at any time under the
Plan shall be subject in any manner to alienation, sale, transfer, assignment,
pledge, attachment, garnishment, or encumbrance of any kind, and shall not be
subject to or reached by any legal or equitable process (including execution,
garnishment, attachment, pledge, or bankruptcy) in satisfaction of any debt,
liability, or obligation, prior to receipt. Any attempt to alienate, sell,
transfer, assign, pledge, or otherwise encumber any such benefit, whether
presently or thereafter payable, shall be void.
9.7 Employer-Employee Relationship. The establishment of this
Plan shall not be construed as conferring any legal or other rights upon any
Employee or any person for a continuation of employment, nor shall it interfere
with the rights of the Employer to discharge any Employee or otherwise act with
relation to the Employee. The Employer may take any action (including
discharge) with respect to any Employee or other person and may treat such
person without regard to the effect which such action or treatment might have
upon such person as a Participant of this Plan.
9.8 Effect on Other Benefit Plans. Employer Contributions
credited or paid under this Plan shall not be considered to be compensation for
the purposes of any other qualified retirement plan of the Employer. Deferrals
hereunder shall be considered to be compensation for the purposes of the
ConsecoSave Plan. The treatment of such amounts under other employee benefit
plans maintained by the Employer shall be determined pursuant to the provisions
of such plans.
<PAGE>
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9.9 Tax Liability. The Employer may withhold from any payment
of benefits hereunder any taxes required to be withheld and such sum as the
Employer may reasonably estimate to be necessary to cover any taxes for which
the Employer may be liable and which may be assessed with regard to such
payment except the employer portion of FICA.
9.10 Adjustment in Number of Units. In the event of any stock
dividend of the Company Stock or any split-up or combination of shares of the
Company Stock, appropriate adjustment shall be made by the Administrator in the
number of Units standing to the credit of each Participant in the Employer
Contribution Account.
Article X. Amendment, and Termination
10.1 Amendment and Termination. The Company reserves the right
to change or discontinue this Plan by action of the Board in its discretion;
provided, however, that in the case of any person to whom benefits under this
Plan had accrued upon termination of employment prior to such Board action, or
in the case of any Participant who would have been entitled to benefits under
this Plan had the Participant's employment ceased prior to such change or
discontinuance, the benefits such person had accrued under this Plan prior to
such change or discontinuance shall not be adversely affected thereby.
Provided, however, that notwithstanding anything herein to the contrary,
nothing contained herein shall restrict the Company's right to terminate the
Plan and immediately distribute all benefits accrued hereunder in a single lump
sum payment.
IN WITNESS WHEREOF, the Company has caused this Plan to be signed by
its duly authorized officers effective as of January 1, 1995, on this 16th day
of December, 1994.
CONSECO, INC.
ATTEST:
By /S/ Stephen C. Hilbert
---------------------------
Chairman of the Board
By /S/ Lawrence W. Inlow
-----------------------
Secretary
