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)
Chief Executive Officer Employment Agreement
(Full title of the plan)
John J. Sabl
11825 N. Pennsylvania Street
Carmel, Indiana 46032
(Name and address of agent for service)
(317) 817-6163
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
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
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 202,500 shares (1) $30.5313 (2) $6,182,588 (2) $1,718.76
- ------------------------------------------------------------------------------------------------------------------------------------
<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 July 16, 1999.
</FN>
</TABLE>
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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, 1998.
2. Quarterly Report on Form 10-Q filed by the Company for the
quarterly period ended March 31, 1999.
3. 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 John J. Sabl, Esq., Executive Vice
President and General Counsel of the Company. Mr. Sabl holds options to purchase
450,000 shares of Common Stock and owns 80,076 shares of Common Stock directly
and indirectly.
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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.
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.
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<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
See the Exhibit Index immediately following the signature pages 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 (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.
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<PAGE>
(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 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 23rd day of July,
1999.
CONSECO, INC.
By: /s/ Rollin M. Dick
------------------------
Rollin M. Dick,
Executive Vice President
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears
below hereby appoints John J. Sabl 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/ Stephen C. Hilbert Chairman of the Board, July 23, 1999
- -------------------------- President and Chief Executive
Stephen C. Hilbert Officer (Principal Executive
Officer)
/s/ Rollin M. Dick Executive Vice President, Chief July 23, 1999
- -------------------------- Financial Officer and Director
Rollin M. Dick (Principal Financial Officer)
/s/ James S. Adams Senior Vice President, Chief July 23, 1999
- -------------------------- Accounting Officer and
James S. Adams Treasurer (Principal Accounting
Officer)
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Signatures Title (Capacity) Date
---------- ---------------- ----
/s/ Lawrence M. Coss Director July 23, 1999
- --------------------------
Lawrence M. Coss
/s/ Ngaire E. Cuneo Director
- -------------------------- July 23, 1999
Ngaire E. Cuneo
/s/ David R. Decatur Director
- -------------------------- July 23, 1999
David R. Decatur
/s/ Donald F. Gongaware Director
- -------------------------- July 23, 1999
Donald F. Gongaware
/s/ M. Phil Hathaway Director
- -------------------------- July 23, 1999
M. Phil Hathaway
/s/ James D. Massey Director
- -------------------------- July 23, 1999
James D. Massey
/s/ Dennis E. Murray, Sr. Director
- -------------------------- July 23, 1999
Dennis E. Murray, Sr.
/s/ John M. Mutz Director
- -------------------------- July 23, 1999
John M. Mutz
/s/ Robert S. Nickoloff Director
- -------------------------- July 23, 1999
Robert S. Nickoloff
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EXHIBITS
Exhibit No.
- -----------
5(a) Opinion of Counsel re: legality
23(a) Consent of Counsel [See Exhibit 5(a)]
23(b) Consent of PricewaterhouseCoopers LLP
23(c) Consent of KPMG LLP
24(a) Powers of Attorney of Stephen C. Hilbert, Rollin M. Dick,
James S. Adams, Lawrence M. Coss, Ngaire E. Cuneo, David R.
Decatur, Donald F. Gongaware, M. Phil Hathaway, James D.
Massey, Dennis E. Murray, Sr., John M. Mutz, and Robert S.
Nickoloff are included on the signature page of this
Registration Statement and are incorporated herein by
reference.
Exhibit 5(a)
July 23, 1999
Board of Directors
Conseco, Inc.
11825 N. Pennsylvania Street
Carmel, Indiana 46032
Re: Conseco, Inc.
Registration Statement on Form S-8
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 ("we") have acted as counsel to the Company in connection
with the Registration Statement on Form S-8 concerning shares of common stock,
no par value, of the Company ("Common Stock") to be issued in connection with
the Amended and Restated Employment Agreement by and between Stephen C. Hilbert
and the Company, dated as of May 26, 1999 (the "Agreement"). In connection with
our representation, we have examined the corporate records of the Company,
including its Amended and Restated Articles of Incorporation, its Amended and
Restated ByLaws 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 Agreement and the shares of Common Stock to be issued
under the Agreement have been duly authorized by all requisite
corporate action.
3. With respect to the authorized but unissued shares of Common
Stock to be issued under the Agreement, such shares, when
issued in accordance with the terms and provisions for their
issuance, will be validly issued, fully paid and
non-assessable.
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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,
By: /s/ John J. Sabl
--------------------------------------------
John J. Sabl
Executive Vice President, General Counsel
and Secretary
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Conseco, Inc. on Form S-8 (File No. 333-00000), of our report dated March 30,
1999 on our audits of the consolidated financial statements and financial
statement schedules of Conseco, Inc. and subsidiaries as of December 31, 1998
and 1997, and for the years ended December 31, 1998, 1997 and 1996, included in
the Annual Report on Form 10-K, which as to the years 1997 and 1996, insofar as
such financial statements relate to Green Tree Financial Corporation, is based
on the report of KPMG LLP, independent auditors.
/s/ PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
Indianapolis, Indiana
July 23, 1999
Exhibit 23(c)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Conseco, Inc.:
We consent to the incorporation by reference in the Registration Statement for
the registration of 202,500 shares of Conseco, Inc. common stock on Form S-8 of
Conseco, Inc. of our report dated January 27, 1998, relating to the consolidated
balance sheet of Green Tree Financial Corporation and subsidiaries as of
December 31, 1997, and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the years in the two-year period
ended December 31, 1997, not separately presented in or incorporated by
reference in the Annual Report on Form 10-K of Conseco, Inc. for the year ended
December 31, 1998. Our report refers to the Company's adoption of the Financial
Accounting Standards Board's Statement No. 125 "Accounting for Transfers and
Servicing of Financial Assets and Extinguishments of Liabilities," in 1997.
/s/ KPMG LLP
-------------------------
KPMG LLP
Minneapolis, Minnesota
July 23, 1999
