As filed with the Securities and Exchange Commission on June 5, 2002
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
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CONSECO, INC.
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)
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)
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
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Common Stock, no par value......... 11,200,000 $ 2.67 (2) $29,904,000 (2) $ 2,751
shares (1)
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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 3, 2002.
EXPLANATORY NOTE
The material which follows, up to but not including the page beginning Part
II of this Registration Statement, constitutes a "reoffer" prospectus prepared
in accordance with Part I of Form S-3 to be used in connection with resales of
restricted shares of common stock issued under an employment agreement. These
shares of common stock may be considered "restricted securities" as defined in
General Instruction C(1) to Form S-8.
PROSPECTUS
3,200,000 Shares
CONSECO, INC.
Common Stock
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This prospectus relates to resales of up to 3,200,000 shares of our common
stock, no par value per share, which have been issued to the selling stockholder
identified in this prospectus pursuant to his employment agreement. The
employment agreement obligated us to prepare and file this prospectus with the
Securities and Exchange Commission. The selling stockholder may donate all or
some portion of the shares to third parties, including charities.
The shares of the selling stockholder and his donees, transferees or other
successors in interest, may be offered on or after June 30, 2002, through public
or private transactions at prevailing market prices, at prices related to
prevailing market prices or at privately negotiated prices. Our common stock is
traded on the New York Stock Exchange under the symbol "CNC." On June 3, 2002,
the closing sale price as reported by the NYSE was $2.59 per share.
Investing in our common stock involves risks. Risk Factors begin on page 5.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
REGULATOR HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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Our principal executive offices are located at 11825 North Pennsylvania
Street, Carmel, Indiana 46032 and our telephone number is (317) 817-6100.
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The date of this prospectus is June 5, 2002.
TABLE OF CONTENTS
Page
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FORWARD-LOOKING STATEMENTS.....................................................................................2
RISK FACTORS...................................................................................................5
SELECTED CONSOLIDATED FINANCIAL DATA..........................................................................12
USE OF PROCEEDS...............................................................................................15
DESCRIPTION OF CAPITAL STOCK..................................................................................15
SELLING STOCKHOLDER...........................................................................................17
PLAN OF DISTRIBUTION..........................................................................................18
INDEMNIFICATION...............................................................................................19
LEGAL MATTERS.................................................................................................19
EXPERTS.......................................................................................................19
WHERE YOU CAN FIND MORE INFORMATION...........................................................................20
FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus (including the information
incorporated by reference) may constitute "forward-looking statements" within
the meaning of Section 27A and Section 21E of the Securities Act and the
Exchange Act. When used in this prospectus or in documents incorporated by
reference in this prospectus, the words "believe," "anticipate," "estimate,"
"project," "intend," "expect," "may," "will," "plan," "should," "would,"
"contemplate," "possible," "attempts," "seeks" and similar expressions are
intended to identify forward-looking statements. Forward-looking statements are
subject to known and unknown risks, uncertainties and other factors that may
cause our actual results, performance or achievements to be materially different
from the future results, performance or achievements expressed or implied by our
forward-looking statements. Assumptions and other important factors that could
cause our actual results to differ materially from those anticipated in our
forward-looking statements include, but are not limited to:
o the factors described in this prospectus under "Risk Factors";
o general economic conditions and other factors, including prevailing
interest rate levels, stock and credit market performance, and health
care inflation, which may affect (among other things) our ability to
sell our products, our ability to make loans and access capital
resources and the costs associated therewith, the market value of our
investments, the lapse rate and profitability of policies, and the
level of defaults and prepayments of loans we made;
o our ability to achieve anticipated synergies and levels of operational
efficiencies, including from our "Process Excellence" initiatives;
o customer response to new products, distribution channels, and
marketing initiatives;
o mortality, morbidity, usage of health care services and other factors
that may affect the profitability of our insurance products;
o the performance of our investments;
o changes in tax laws and regulations that may affect the relative tax
advantages of some of our products;
o increasing competition in the sale of insurance and annuities and in
the finance business;
o regulatory changes or actions, including those relating to regulation
of financial services affecting (among other things) bank sales and
underwriting of insurance products, regulation of the sale,
underwriting and pricing of products, and health care regulation
affecting health insurance products;
o the outcome of our efforts to sell assets and reduce, refinance or
modify indebtedness and the availability and cost of capital in
connection with this process;
o actions by rating agencies and the effects of past or future actions
by these agencies on our business; and
o the risk factors or uncertainties listed from time to time in our
filings with the SEC.
Other factors not currently known to us or not currently considered
material by us may also be relevant to our forward-looking statements and could
also cause actual results to differ materially from those projected.
All written or oral forward-looking statements attributable to us are
expressly qualified in their entirety by the foregoing cautionary statement. Our
forward-looking statements speak only as of the date made. Except as required by
law, we assume no obligation to update or to publicly announce the results of
any revisions to any of our forward-looking statements to reflect actual
results, future events or developments, changes in assumptions or changes in
other factors affecting the forward-looking statements.
2
CONSECO
Conseco, Inc. ("we," "Conseco," or the "Company") is a financial services
holding company with subsidiaries operating in the insurance and finance
businesses, predominantly in the United States. Our insurance subsidiaries
develop, market and administer supplemental health insurance, annuities,
individual life insurance, and other insurance products. Our finance
subsidiaries originate, securitize and service manufactured housing, home
equity, retail credit, and floor plan loans.
We have a recent history of net losses. For the three months ended March
31, 2002, on a consolidated basis, we had a net loss of $ 95.9 million, cash
flows from operations of $263.0 million and interest expense of $368.7 million.
For 2001, on a consolidated basis, we had a net loss of $405.9 million, cash
flows from operations of $1,324.7 million and interest expense of $1,609.2
million. Our earnings before fixed charges were inadequate to cover our fixed
charges by $148.5 million and $623.1 million for the three months ended March
31, 2002 and fiscal year 2001, respectively. Credit agencies have recently
downgraded our credit rating for our debt and our company-obligated mandatorily
redeemable preferred securities of subsidiary trusts. Two rating agencies have
recently issued negative outlooks on our ratings, meaning they may downgrade our
credit rating further.
We were organized in 1979 as an Indiana corporation and commenced
operations in 1982. Our executive offices are located at 11825 N. Pennsylvania
Street, Carmel, Indiana 46032, and our telephone number is (317) 817-6100. Our
common stock trades on the New York Stock Exchange under the ticker symbol
"CNC."
Insurance
We are one of the largest life and health insurance companies in America,
with over $5.5 billion of annual premium and asset accumulation product
collections during 2001 and $1.4 billion collected during the three months ended
March 31, 2002 (excluding discontinued lines of business). Our investment
portfolio included more than $24 billion of insurance-related investments at
March 31, 2002. We sell our insurance products through three primary
distribution channels -- career agents, independent producers (many of whom sell
one or more of our product lines exclusively), and direct marketing.
Supplemental health products include Medicare supplement, long-term care
and specified-disease insurance products. During 2001, we collected Medicare
supplement premiums of $975.1 million, long-term care premiums of $888.3
million, specified-disease premiums of $371.8 million, and other supplemental
health premiums of $109.3 million. During the three months ended March 31, 2002,
proceeds from Medicare supplement premiums were $261.9 million, long-term care
premiums were $225.7 million, specified-disease premiums were $93.1 million, and
other supplemental health premiums were $29.4 million. Supplemental health
premiums represented 48% and 50% of our total premiums collected from continuing
lines of business in 2001 and the first three months of 2002, respectively.
Annuity products include equity-indexed annuity, variable annuity,
traditional fixed rate annuity and market value-adjusted annuity products.
During 2001 and the three months ended March 31, 2002, we collected annuity
premiums of $1,637.9 million (or 34% of our total premiums collected from
continuing lines of business) and $391.1 million (or 32% of our premiums
collected from continuing lines of business), respectively.
Life products include traditional, universal life and other life insurance
products. During 2001, we collected life product premiums of $872.2 million, or
18% of our total premiums collected from continuing lines of business. During
the three months ended March 31, 2002, we collected life product premiums of
$214.2 million, or 18% of our total premiums collected from continuing lines of
business.
Finance
Conseco Finance Corp., or "Conseco Finance", our subsidiary, is one of
America's largest consumer finance companies, with leading market positions in
manufactured housing lending, retail home equity mortgages, home improvement
loans, and private label credit cards. At March 31, 2002, we had managed
receivables of $41.5 billion.
Conseco Finance provides financing for consumer purchases of manufactured
housing and floor plan loans to manufactured housing dealers. A manufactured
home is a structure, transportable in one or more sections, designed to be a
dwelling with or without a permanent foundation. During 2001, we originated $2.5
billion of consumer contracts for
3
manufactured housing purchases, or 22% of our total originations. At March 31,
2002, our managed receivables included $25.1 billion of contracts for
manufactured housing purchases, or 60% of total managed receivables, and $.7
billion of floor plan loans. Conseco Finance offers its manufactured housing
financing products through 33 regional offices and approximately 3,200 dealers.
Mortgage services products include home equity and home improvement loans.
During 2001, we originated $3.0 billion of contracts for these products, or 27
percent of our total originations. At March 31, 2002, our managed receivables
included $11.4 billion of contracts for home equity and home improvement loans,
or 27% of total managed receivables. During 2001, we originated $3.6 billion of
private label credit card receivables, primarily through our bank subsidiaries,
or 32% of our total originations. At March 31, 2002, our managed receivables
included $2.6 billion of contracts for credit card loans, or 6% of total managed
receivables. Private label credit card programs are offered to select retailers
with a core focus on the home improvement industry. We offer consumer finance
products through 123 home equity offices, approximately 1,300 home improvement
dealers and approximately 3,500 private label retail outlets.
4
RISK FACTORS
You should carefully consider all information included or incorporated by
reference in this prospectus. In particular, you should carefully consider the
risks described below before purchasing our common stock. These are not the only
risk and uncertainties we face. Additional risks and uncertainties described
elsewhere herein or in the documents incorporated by reference may also impair
our financial condition, results of operations or prospects.
Our Degree of Leverage May Limit Our Financial and Operating Activities.
As of March 31, 2002 we had substantial outstanding indebtedness. With
respect to the ratio of earnings to fixed charges, preferred stock dividends and
distributions on company-obligated mandatorily redeemable preferred securities
of subsidiary trusts for the three months ended March 31, 2002, adjusted
earnings were $ 148.5 million less than fixed charges. For the year 2001,
adjusted earnings were $623.1 million less than fixed charges.
This degree of leverage could have material adverse consequences to us
including the following: (i) our ability to obtain additional financing in the
future for working capital, capital expenditures or other purposes may be
impaired; (ii) a substantial portion of our cash flow from operations will be
required to be dedicated to the payment of interest expense and principal
repayment obligations; (iii) higher interest rates will cause the interest
expense on our variable rate debt to be higher; (iv) we may be more highly
leveraged than other companies with which we compete, and this may place us at a
competitive disadvantage; (v) our degree of leverage will make us more
vulnerable to a downturn in our business or in the general economy; and (vi) our
degree of leverage may adversely affect the ratings of our insurance company
subsidiaries, which in turn may adversely affect their competitive position and
ability to sell products.
Our cash flow may be affected by a variety of factors, many of which are
outside of our control, including insurance regulatory issues, competition,
financial markets and other general business conditions. Although we believe
that amounts required for us to meet our financial and operating obligations
will be available from our subsidiaries, our results for future periods beyond
2002 are subject to numerous uncertainties. Consequently, we cannot assure you
that we will possess sufficient cash flow and liquidity to meet all of our
long-term debt service requirements beyond 2002 and other obligations.
A Negative Change in the Claims-Paying Ability Ratings of Our Insurance
Corporations Could Negatively Impact Our Insurance Subsidiaries.
An important competitive factor for life insurance companies is the ratings
they receive from nationally recognized rating organizations. Agents, insurance
brokers and marketing companies who market our products and prospective
purchasers of our products use the ratings of our insurance subsidiaries as one
factor in determining which insurer's products to market or purchase. Ratings
have the most impact on our annuity and interest-sensitive life insurance
products. Our insurance subsidiaries are currently rated "A- (Excellent)" by
A.M. Best Company, and Standard & Poor's Corporation has given our insurance
subsidiaries a claims-paying ability rating of "BB+(Marginal)." A.M. Best
ratings for the industry currently range from "A++ (Superior)" to "F (In
Liquidation)" and some companies are not rated. A.M. Best's ratings and Standard
& Poor's claims-paying ability ratings are based upon factors relevant to
policyholders, agents and intermediaries and are not directed toward the
protection of investors. Such ratings are not recommendations to buy, sell or
hold securities. A.M. Best and Standard & Poor's each reviews its ratings from
time to time. As of March 31, 2002, the A- (Excellent) financial strength
ratings of our primary insurance subsidiaries remained "under review with
negative implications". We cannot provide any assurance that the ratings of our
insurance subsidiaries will remain at their current level. If those ratings are
downgraded, sales of our insurance products could fall significantly and
existing policy holders may redeem or lapse their policies, causing a material
and adverse impact on our financial results and liquidity.
We Face Significant Contingent Obligations Associated with the D&O Loans.
We have guaranteed bank loans totaling $545.2 million as of March 31, 2002
to approximately 155 current and former directors, officers and key employees,
which we refer to as the D&O loans. The funds were used by the participants to
purchase approximately 18.0 million shares of our common stock in open market or
negotiated transactions with independent parties. Such shares are held by the
banks as collateral for the loans. In addition, we have provided loans to
participants for interest on the bank loans totaling $151.3 million. The bank
loans which we and CIHC have each guaranteed mature on December 31, 2003. We
have established a non-cash reserve for the exposure we have
5
in connection with such guarantees. At March 31, 2002, our reserve for losses on
the loan guarantees totaled $460.0 million based upon the value of the
collateral and the creditworthiness of the participants. If we are required to
pay on the guarantees, it could have a material adverse impact on our liquidity
position.
The Covenants in Our Bank Credit Agreements Also Restrict Our Activities.
In the first quarter of 2002, we amended the credit agreements related to
our bank debt. We agreed to a number of covenants and other provisions that
restrict our ability to borrow money and pursue some operating activities
without the prior consent of the lenders under the credit agreements. Those
provisions restrict our ability to use the proceeds of asset sales. We agreed to
meet or maintain various financial ratios and balances. Our ability to meet
these financial tests and maintain ratings may be affected by events beyond our
control. The credit agreement also limits our ability to issue additional debt,
incur additional contingent obligations, grant liens, dispose of assets, enter
into transactions with affiliates, make certain investments, including in
existing and new businesses, change our businesses, and modify our outstanding
debt and preferred stock. Although we were in compliance with these provisions
as of March 31, 2002, these provisions represent significant restrictions on the
manner in which we may operate our business. If we default under any of these
provisions, the lenders could declare all outstanding borrowings, accrued
interest and fees to be due and payable. If that were to occur, no assurance can
be given that we would have sufficient liquidity to repay our bank indebtedness
in full or any of our other debts. The $1.5 billion facility is due December 31,
2003; however, subject to the absence of any default, we may further extend its
maturity to March 31, 2005, provided that: (i) we pay an extension fee of 3.5%
of the amount extended; (ii) cumulative principal payments of at least $200.0
million have been paid by September 30, 2002 and at least $500.0 million have
been paid by September 30, 2003 and (iii) our interest coverage ratio for the
four quarters ending September 30, 2003 is greater than or equal to 2.25 to 1.
We Are a Holding Company and Depend On Our Subsidiaries for Cash.
We are a holding company with no business operations of our own; we depend
on our operating subsidiaries for cash to make principal and interest payments
on our debt (including payments to subsidiary trusts to be used for
distributions on company-obligated mandatorily redeemable preferred securities),
and to pay administrative expenses and income taxes. The cash we receive from
our subsidiaries consists of fees for services, tax sharing payments, dividends
and surplus debenture interest and principal payments. A deterioration in any of
our material subsidiaries' financial condition, earnings or cash flow for any
reason could limit such subsidiary's ability to pay cash dividends or other
payments to us, which, in turn, would limit our ability to meet our debt service
requirements and satisfy our other financial obligations.
The ability of our insurance subsidiaries to pay dividends is subject to
state insurance department regulations. These regulations generally permit
dividends to be paid from earned surplus of the insurance company for any
12-month period in amounts equal to the greater of (or in a few states, the
lesser of): (i) net gain from operations for the prior year; or (ii) 10% of
surplus as of the end of the preceding year. Any dividends in excess of these
levels require the approval of the director or commissioner of the applicable
state insurance department. In March 2002, we received approval from various
insurance regulatory authorities to pay dividends to Conseco of $225.0 million,
of which $100.0 million was paid in April 2002. In addition, during the first
quarter of 2002, we requested permission to pay dividends to Conseco of $15.0
million which request was approved by regulatory authorities in early April
2002. During the remainder of 2002, we expect to request permission from the
regulatory authorities to pay additional extraordinary dividends, substantially
all of which are related to anticipated reinsurance transactions. Although we
believe that amounts required for us to meet our financial and operating
obligations will be available from our subsidiaries, our results for future
periods beyond 2002 are subject to numerous uncertainties. We may encounter
liquidity problems, which could affect our ability to meet our obligations while
attempting to meet competitive pressures or adverse economic conditions. In that
event, the value of the notes could be materially adversely affected.
We Depend on Key Management Personnel.
The development and implementation of our business strategies is dependent
upon certain of our key management personnel, in particular Gary Wendt, our
chief executive officer. The loss of any of our executive officers could have a
material adverse effect on us. We have multi-year employment agreements with Mr.
Wendt and certain other key managers. Mr. Wendt's employment agreement expires
in 2005 and provides for vesting of certain financial benefits on June 30, 2002.
6
Delinquencies and Collateral Recovery Rates Experienced by Our Consumer Finance
Subsidiary Can Be Adversely Impacted by a Variety of Factors, Many of Which Are
Outside Our Control.
Conseco Finance provided approximately 34% of our revenues for the three
months ended March 31, 2002. Delinquencies on loans held in our loan portfolio
and our ability to recover collateral and mitigate loan losses can be adversely
impacted by a variety of factors, many of which are outside our control. For
example, proposed changes to the federal bankruptcy laws applicable to
individuals would make it more difficult for borrowers to seek bankruptcy
protection, and the prospect of these changes may encourage certain borrowers to
seek bankruptcy protection before the law changes, thereby increasing
delinquencies. When loans are delinquent and Conseco Finance forecloses on the
loan, its ability to sell collateral to recover or mitigate its losses is
subject to the market value of such collateral. In manufactured housing, those
values may be affected by the available inventory of manufactured homes on the
market, a factor over which we have no control. It is also dependent upon demand
for new homes, which is tied to economic factors in the general economy. In
addition, repossessed collateral is generally in poor condition, which reduces
its value.
Recently, many consumer lenders have stopped or significantly scaled back
their consumer finance operations in the manufactured housing sector. These
lenders began to foreclose on collateral pledged to secure loans at a more
aggressive rate. Conseco Finance may face increased competition from such
lenders in disposing of collateral pledged to secure its loans. Often collateral
is in similar forms. There is a limited number of collateral buyers and the
exiting consumer lenders may be willing to sell their foreclosed collateral at
prices significantly below fair market value. As a result, collateral recovery
rates for Conseco Finance may fall, which could have a material adverse effect
on the financial position and results of Conseco Finance, and reduces the funds
available for distribution to us and for the benefit of our creditors.
An Economic Downturn May Lead to a Deterioration in Our Asset Quality and
Adversely Affect Our Finance Business Earnings and Cash Flow.
The risks associated with our finance business become more acute in any
economic slowdown or recession. Periods of economic slowdown or recession may be
accompanied by decreased demand for consumer credit and declining asset values.
In the home equity mortgage and manufactured housing businesses, any material
decline in real estate values reduces the ability of borrowers to use home
equity to support borrowing and increases the loan-to-value ratios of loans
previously made, thereby weakening collateral coverage and increasing the
possibility of a loss in the event of a default. Delinquencies, foreclosures and
losses generally increase during economic slowdowns or recessions. For our
finance customers, loss of employment, increases in cost-of-living or other
adverse economic conditions would impair their ability to meet their payment
obligations. In addition, in an economic slowdown or recession, our servicing
and litigation costs increase. Any sustained period of increased delinquencies,
foreclosures, losses or increased costs would adversely affect our financial
condition and results of operations.
Our Net Interest Income and Servicing Fees from Our Finance Operations Are
Subject to Prepayment Risk.
At March 31, 2002, we had $41.5 billion of managed receivables on which we
earn net interest income and servicing fees. Prepayments of our managed
receivables, whether due to refinancing, repayments or foreclosures, in excess
of management's estimates could adversely affect our future cash flow at our
finance subsidiary due to the resulting loss of servicing fee revenue and net
interest income on such prepaid receivables. Prepayments can result from a
variety of factors, many of which are beyond our control, including changes in
interest rates and general economic conditions.
We Depend Upon Securitization Programs to Fund Our Finance Operations.
The most significant source of liquidity for our finance operations has
been our ability to finance the receivables we originate through loan
securitizations. Accordingly, adverse changes in the securitization market could
impair our ability to originate, purchase and sell loans or other assets on a
favorable or timely basis. Any such impairment could have a material adverse
effect upon our business and results of operations. The securitization market is
sensitive to the credit ratings of Conseco Finance in connection with our
securitization program. A negative change in the credit ratings of Conseco
Finance could have a material adverse effect on our ability to access capital
through the securitization market. In addition, the securitization market for
many types of assets is relatively undeveloped and may be more susceptible to
market fluctuations or other adverse changes than more developed capital
markets. Although we have alternative sources of funding, principally warehouse
and bank credit facilities as well as loan sales, these alternatives may not be
sufficient for us to continue to originate loans at our current origination
levels.
7
At May 28, 2002, we had $1.9 billion of committed (and an additional $1.9
billion of uncommitted) capacity under our warehouse and bank credit facilities
to fund our finance operations, subject to certain conditions. At March 31,
2002, we had borrowed $2.0 billion under these agreements, leaving $1.8 billion
available to borrow (of which approximately $0.3 billion is committed). If we
are unable to securitize our asset portfolios, our loan originations will
significantly decrease and our liquidity will be negatively affected.
Although we expect to be able to obtain replacement financing when our
current securitization facilities expire, there can be no assurance that
financing will be obtainable on favorable terms, if at all. To the extent that
we are unable to arrange any third party or other financing, our loan
origination activities would be adversely affected, which could have a material
adverse effect on our operations, financial results and cash position.
We May Experience further Downgrades in Our Credit Ratings Which Could Affect
Our Debt
We have most recently experienced two consecutive years of net losses.
Rating agencies have recently downgraded our credit rating for our debt and our
company-obligated mandatorily redeemable preferred securities of subsidiary
trusts. On May 28, 2002, the credit ratings for certain of our notes was
downgraded to "Caa1" from "B2" by Moody's, which said its ratings outlook for us
is negative. Our senior debt remains on credit watch for further downgrade at
Standard & Poor's, which currently rates our senior unsecured debt at "B". At
May 31, 2002, our senior debt was rated "B-" and on Rating Watch Negative by
Fitch IBCA ("Fitch Ratings"). A downgrade in our credit rating affects our cost
of borrowing and our ability to borrow from lenders. Accordingly, for future
periods beyond 2002, we can make no assurances that we will have, or will be
able to obtain, sufficient funds to repay our debt securities when they become
due.
Our Financial Performance May Be Subject to Volatility Due to Possible
Impairment Charges Relating to the Valuation of Interest-Only Securities.
Conseco Finance holds substantial residual interests in securitization
transactions executed prior to September 1999, which we refer to as
interest-only securities. We carry these securities at estimated fair value,
which we determine by discounting the projected cash flows over the expected
life of the loan receivables sold using prepayment, default, loss and interest
rate assumptions. Since September 1999, we have securitized our loan receivables
using the portfolio method resulting in balance sheet financing treatment. As a
result, we are no longer creating interests in interest-only securities.
We are required to recognize declines in the value of our interest-only
securities, and resulting charges to earnings, when: (i) their fair value is
less than their carrying value, and (ii) the timing and/or amount of cash
expected to be received from these securities has changed adversely from the
previous valuation that determined the carrying value. The assumptions we use to
determine new values are based on our internal evaluations and consultation with
external advisors having significant experience in valuing these securities.
Although we believe our methodology is reasonable, many of the assumptions and
expectations underlying our determinations may prove wrong, in which case there
may be an adverse effect on our financial results. Largely as a result of
adverse changes in the underlying assumptions, we recognized impairment charges
of $386.9 million in 2001, $515.7 million in 2000, $554.3 million in 1999 and
$549.4 million in 1998 to reduce the book value of our interest-only securities
and servicing rights. At March 31, 2002, the carrying value of our interest-only
securities, net of servicing liabilities was $148.3 million (including
unrealized gains of $25.1 million).
No assurances can be given that our current valuation of interest-only
securities will prove accurate in future periods. In addition, in the
securitizations to which these interest-only securities relate, we have retained
certain contingent risks in the form of guarantees of residual interests. At
March 31, 2002, the total amount of these guarantees by Conseco Finance was $1.5
billion. If we have to make more payments on these guarantees than anticipated,
or we experience higher than anticipated rates of loan repayment, including due
to foreclosures or charge-offs, or any adverse changes in our other assumptions
used for valuation (such as interest rates), we could be forced to recognize
additional impairment charges which could have a material adverse effect on our
financial condition or results of operations.
Our Insurance Business Performance May Decline if Our Premium Rates Are Not
Adequate.
We set the premium rates on our health insurance policies based on facts
and circumstances known at the time we issue the policies and on assumptions
about numerous variables, including the actuarial probability of a policyholder
incurring a claim, the severity, and the interest rate earned on our investment
of premiums. In setting premium rates, we consider historical claims
information, industry statistics, the rates of our competitors and other
factors. If our actual
8
claims experience proves to be less favorable than we assumed and we are unable
to raise our premium rates, our financial results may be adversely affected. We
generally cannot raise our premiums in any state unless we first obtain the
approval of the insurance regulator in that state. We review the adequacy of our
premium rates regularly and file rate increases on our products when we believe
existing premium rates are too low. It is possible that we will not be able to
obtain approval for premium rate increases from currently pending requests or
requests filed in the future. If we are unable to raise our premium rates
because we fail to obtain approval for a rate increase in one or more states,
our net income may decrease. If we are successful in obtaining regulatory
approval to raise premium rates due to unfavorable actual claims experience, the
increased premium rates may reduce the volume of our new sales and cause
existing policyholders to allow their policies to lapse. This would reduce our
premium income in future periods. Increased lapse rates also could require us to
expense all or a portion of the deferred policy costs relating to lapsed
policies in the period in which those policies lapse, adversely affecting our
financial results in that period.
Our Reserves for Future Insurance Policy Benefits and Claims May Prove To Be
Inadequate, Requiring Us To Increase Liabilities and Resulting In Reduced Net
Income and Shareholders' Equity.
We calculate and maintain reserves for the estimated future payment of
claims to our policyholders using the same actuarial assumptions that we use to
set our premiums. For our health insurance business, we establish an active life
reserve plus a liability for due and unpaid claims, claims in the course of
settlement, and incurred but not reported claims, as well as a reserve for the
present value of amounts not yet due on claims. Many factors can affect these
reserves and liabilities, such as economic and social conditions, inflation,
hospital and pharmaceutical costs, changes in doctrines of legal liability, and
extracontractual damage awards. Therefore, the reserves and liabilities we
establish are necessarily based on extensive estimates, assumptions and prior
years' statistics. Establishing reserves is an uncertain process, and it is
possible that actual claims will materially exceed our reserves and have a
material adverse effect on our results of operations and financial condition.
Our financial performance depends significantly upon the extent to which our
actual claims experience is consistent with the assumptions we used in setting
our reserves and pricing our policies. If our assumptions with respect to future
claims are incorrect, and our reserves are insufficient to cover our actual
losses and expenses, we would be required to increase our liabilities resulting
in an adverse effect to our financial results and financial position.
We Are Subject to Extensive Regulation.
Our finance and insurance businesses are subject to extensive regulation
and supervision in the jurisdictions in which we operate, which is primarily for
the benefit and protection of our customers, and not for the benefit of our
investors or creditors. Our finance operations are subject to regulation by
federal, state and local government authorities, as well as to various laws and
judicial and administrative decisions, that impose requirements and restrictions
affecting, among other things, our loan originations, credit activities, maximum
interest rates, finance and other charges, disclosure to customers, the terms of
secured transactions, collection, repossession and claims-handling procedures,
multiple qualification and licensing requirements for doing business in various
jurisdictions, and other trade practices. Although we believe that we are in
compliance in all material respects with applicable local, state and federal
laws, rules and regulations, it is possible that more restrictive laws, rules or
regulations will be adopted in the future that could make compliance more
difficult or expensive, restrict our ability to originate or sell loans, further
limit or restrict the amount of interest and other charges earned on loans
originated by us, further limit or restrict the terms of loan agreements, or
otherwise adversely affect our business or prospects.
Our insurance subsidiaries are subject to state insurance laws that
establish supervisory agencies with broad administrative powers relative to
granting and revoking licenses to transact business, regulating sales and other
practices, licensing agents, approving policy forms, setting reserve and
solvency requirements, determining the form and content of required statutory
financial statements, limiting dividends and prescribing the type and amount of
investments.
Recently Enacted and Pending or Future Legislation Could Also Affect the
Financial Performance of Our Insurance Operations.
During recent years, the health insurance industry has experienced
substantial changes, primarily caused by healthcare legislation. Recent federal
and state legislation and legislative proposals relating to healthcare reform
contain features that could severely limit or eliminate our ability to vary our
pricing terms or apply medical underwriting standards with respect to
individuals which could have the effect of increasing our loss ratios and have
an adverse effect
9
on our financial results. In particular, Medicare reform and legislation
concerning prescription drugs could affect our ability to price or sell our
products.
In addition, proposals currently pending in Congress and some state
legislatures may also affect our financial results. These proposals include the
implementation of minimum consumer protection standards for inclusion in all
long term care policies, including: guaranteed premium rates; protection against
inflation; limitations on waiting periods for pre-existing conditions; setting
standards for sales practices for long term care insurance; and guaranteed
consumer access to information about insurers, including lapse and replacement
rates for policies and the percentage of claims denied. Enactment of any of
these proposals could adversely affect our financial results.
Changing Interest Rates May Adversely Affect Our Results of Operations.
Profitability may be directly affected by the level of and fluctuations in
interest rates which affect our ability to earn a spread between interest
received on loans and the costs of liabilities. While we monitor the interest
rate environment and employ hedging strategies designed to mitigate the impact
of changes in interest rates, our financial results could be adversely affected
by changes in interest rates. During periods of increasing interest rates, we
generally experience market pressure to reduce servicing spreads in our
financing operations. In addition, an increase in interest rates may decrease
the demand for consumer credit. A substantial and sustained increase in interest
rates could, among other things: (i) adversely affect our ability to purchase or
originate loans or other assets; (ii) reduce the average size of loans
underwritten; and (iii) increase securitization funding costs. A significant
decline in interest rates could decrease the size of our loan servicing
portfolio by increasing the level of loan prepayments, thereby shortening the
life and impairing the value of our interest-only securities. Fluctuating
interest rates also may affect our net interest income earned resulting from the
difference between the yield to us on loans held pending securitization and the
cost of funds obtained by us to finance such loans.
Our spread-based insurance business is subject to several inherent risks
arising from movements in interest rates, especially if we fail to anticipate or
respond to such movements. First, interest rate changes can cause compression of
our net spread between interest earned on investments and interest credited on
customer deposits, thereby adversely affecting our results. Second, if interest
rate changes produce an unanticipated increase in surrenders of our spread-based
products, we may be forced to sell investment assets at a loss in order to fund
such surrenders. At December 31, 2001, approximately 19% of our total insurance
liabilities (or approximately $4.8 billion) could be surrendered by the
policyholder without penalty. Finally, changes in interest rates can have
significant effects on the performance of our mortgage-backed securities
portfolio, including collateralized mortgage obligations, as a result of changes
in the prepayment rate of the loans underlying such securities. We follow
asset/liability strategies that are designed to mitigate the effect of interest
rate changes on our profitability. However, there can be no assurance that
management will be successful in implementing such strategies and achieving
adequate investment spreads.
We Are Subject to Litigation Claims Which Could Be Material.
We and our subsidiaries are involved on an ongoing basis in lawsuits
relating to our operations, including with respect to sales practices, and we
and current and former officers and directors are defendants in pending class
action lawsuits asserting claims under the securities laws and derivative
claims. The ultimate outcome of these lawsuits cannot be predicted with
certainty. Director and officer liability insurance against certain liabilities,
including liabilities under the securities laws, was in force at the time the
securities and derivative litigation was commenced. The outcome of these
lawsuits may have a material adverse effect on our financial performance and
liquidity.
The Markets in Which We Compete Are Highly Competitive.
Each of the markets in which we operate is highly competitive. Competitors
include, in the finance segment, finance companies, commercial banks, thrifts,
other financial institutions, credit unions and manufacturers and vendors, and
in the insurance segment, other life insurers, commercial banks, thrifts, mutual
funds and broker-dealers. Many of our competitors in different segments and
regions are larger companies that have greater capital, technological and
marketing resources, and have access to capital at a lower cost. Because the
actual cost of products is unknown when they are sold, we are subject to
competitors who may sell a product at a price that does not cover its actual
cost. In the insurance business, claims paying ability ratings can be a key
competitive factor in marketing products and in attracting and retaining agents.
Should the claims paying ability rating of one or more of our insurance
subsidiaries decline, we may not be able to compete successfully.
10
Tax Law Changes Could Adversely Affect Our Insurance Product Sales and
Profitability.
We sell deferred annuities and some forms of life insurance products which
are attractive to purchasers, in part, because policyholders generally are not
subject to United States federal income tax on increases in policy values until
some form of distribution is made. Recently, Congress enacted legislation to
lower marginal tax rates, reduce the federal estate tax gradually over a
ten-year period, with total elimination of the federal estate tax in 2010 and
increase contributions which may be made to individual retirement accounts and
401(k) accounts. While these tax law changes will sunset at the beginning of
2011 absent future congressional action, they could in the interim diminish the
appeal of our annuity and life insurance products. Additionally, Congress has
considered, from time to time, other possible changes to the U.S. tax laws,
including elimination of the tax deferral on the accretion of value within
certain annuities and life insurance products. There can be no assurance that
further tax legislation will not be enacted which would contain provisions with
possible adverse effects on our annuity and life insurance products.
11
SELECTED CONSOLIDATED FINANCIAL DATA
Our selected consolidated financial data are based on and derived from, and
should be read in conjunction with, our quarterly report on Form 10-Q for the
quarter ended March 31, 2002, and our annual report on Form 10-K for the year
ended December 31, 2001, and the related notes thereto. Our consolidated balance
sheets at December 31, 2001 and 2000, and the consolidated statements of
operations, shareholders' equity and cash flows for each of the three years
ended December 31, 2001, 2000 and 1999, and notes thereto were audited by
PricewaterhouseCoopers LLP, independent accountants. Our consolidated financial
statements as of December 31, 2001 and 2000, and for each of the three years
ended December 31, 2001, are included in our annual report on Form 10-K for the
year ended December 31, 2001, which is incorporated by reference herein. The
selected consolidated financial data set forth for the three months ended March
31, 2002 and 2001 are unaudited; however, in the opinion of our management, the
accompanying selected financial data contain all adjustments, consisting only of
normal recurring items, necessary to present fairly the selected financial data
for such periods. The results of operations for the three months ended March 31,
2002, may not be indicative of the results of operations to be expected for a
full year. See "Where You Can Find More Information" in this prospectus.
The comparison of selected consolidated financial data is significantly
affected by the following business combinations accounted for as purchases:
Washington National Corporation (effective December 1, 1997); Colonial Penn Life
Insurance Company and Providential Life Insurance Company (September 30, 1997);
Pioneer Financial Services, Inc. (April 1, 1997); and Capitol American Financial
Corporation (January 1, 1997). All financial data have been restated to give
retroactive effect to the merger (completed on June 30, 1998) with Conseco
Finance accounted for as a pooling of interests.
Three months ended
March 31, Years ended December 31,
-------------- -------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(Amounts in millions, except per share data)
STATEMENT OF OPERATIONS DATA
Insurance policy income..................... $957.2 $1,029.2 $4,065.7 $4,220.3 $4,040.5 $3,948.8 $3,410.8
Gain on sale of finance receivables (a)..... 7.2 8.9 26.9 7.5 550.6 745.0 779.0
Net investment income....................... 856.7 897.8 3,778.1 3,914.3 3,411.4 2,506.5 2,171.5
Net realized investment gains (losses) ..... (52.2) (113.3) (413.7) (358.3) (156.2) 208.2 266.5
Impairment charge related to retained
interests in securitization transactions.. - (7.9) (386.9) (515.7) (554.3) (549.4) (190.0)
Total revenues.............................. 1,859.3 2,123.0 7,695.2 7,771.2 7,781.4 7,210.8 6,682.2
Interest expense:
Corporate................................. 74.4 105.1 369.6 438.4 249.1 182.2 109.4
Finance and investment borrowings......... 294.3 313.9 1,239.6 1,014.7 312.6 258.3 202.9
Total benefits and expenses................. 1,961.4 1,948.7 8,114.6 9,133.0 6,630.5 6,165.1 5,196.5
Income (loss) before extraordinary gain (loss)
and cumulative effect of accounting change (99.9) 83.8 (423.1) (1,130.9) 595.0 509.7 873.3
Adjusted income (loss) before extraordinary
gain (loss) and cumulative effect of
accounting change (h)..................... (99.9) 111.3 (313.5) (1,018.4) 705.1 619.9 957.8
Extraordinary gain (loss) on extinguishment
of debt, net of income tax................ 4.0 .3 17.2 (5.0) - (42.6) (6.9)
Cumulative effect of accounting change, net
of income tax............................. - - - 55.3 - - -
Net income (loss) (b)....................... (95.9) 84.1 (405.9) (1,191.2) 595.0 467.1 866.4
Adjusted net income (loss) (h).............. (95.9) 111.6 (296.3) (1,078.7) 705.1 577.3 950.9
Preferred stock dividends .................. 1.0 3.9 12.8 11.0 1.5 7.8 21.9
Net income (loss) applicable to common stock (96.9) 80.2 (418.7) (1,202.2) 593.5 459.3 844.5
Adjusted net income (loss) applicable
to common stock (h)....................... (96.9) 107.7 (309.1) (1,089.7) 703.6 569.5 929.0
PER SHARE DATA (c)
Net income (loss), basic.................... $(.28) $.24 $(1.24) $(3.69) $1.83 $1.47 $2.72
Adjusted net income (loss), basic(h)........ (.28) .32 (.92) (3.34) 2.17 1.82 2.99
Net income (loss), diluted.................. (.28) .23 (1.24) (3.69) 1.79 1.40 2.52
Adjusted net income (loss), diluted(h)...... (.28) .30 (.92) (3.34) 2.12 1.73 2.77
Dividends declared per common share......... - - - .100 .580 .530 .313
Book value per common share outstanding..... 11.88 14.00 12.34 11.95 15.50 16.37 16.45
Shares outstanding at period-end............ 346.0 337.6 344.7 325.3 327.7 315.8 310.0
Weighted average shares outstanding for
diluted earnings.......................... 345.2 372.7 338.1 326.0 332.9 332.7 338.7
12
Three months ended
March 31, Years ended December 31,
-------------- -------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(Amounts in millions, except per share data)
BALANCE SHEET DATA - PERIOD END
Total investments........................... $24,999.7 $25,581.1 $25,027.2 $25,017.6 $26,431.6 $26,073.0 $26,699.2
Goodwill.................................... 3,695.4 3,744.7 3,695.4 3,800.8 3,927.8 3,960.2 3,693.4
Total assets................................ 61,490.8 58,459.4 61,392.3 58,589.2 52,185.9 43,599.9 40,679.8
Notes payable and commercial paper:
Corporate................................. 4,092.8 4,925.0 4,087.6 5,055.0 4,624.2 3,809.9 2,354.9
Finance................................... 2,202.8 2,000.2 2,527.9 2,810.9 2,540.1 1,511.6 1,863.0
Related to securitized finance receivables
structured as collateralized borrowings. 15,048.7 12,396.1 14,484.5 12,100.6 4,641.8 - -
Total liabilities........................... 54,962.3 51,334.0 54,724.8 51,810.9 43,990.6 36,229.4 34,082.0
Company-obligated mandatorily redeemable
preferred securities of subsidiary trusts. 1,916.2 1,909.4 1,914.5 2,403.9 2,639.1 2,096.9 1,383.9
Shareholders' equity........................ 4,612.3 5,216.0 4,753.0 4,374.4 5,556.2 5,273.6 5,213.9
OTHER FINANCIAL DATA (c) (d)
Premium and asset accumulation product
collections (e)........................... $1,520.5 $1,620.6 $6,247.1 $7,158.6 $6,986.0 $6,051.3 $5,075.6
Operating earnings (f)...................... 39.9 54.0 218.0 151.8 749.2 841.1 991.8
Managed finance receivables................. 41,532.2 44,776.9 43,002.3 46,585.9 45,791.4 37,199.8 27,957.1
Total managed assets (at fair value) (g).... 93,112.0 93,603.2 94,567.7 95,471.7 98,561.8 87,247.4 70,259.8
Shareholders' equity, excluding accumulated
other comprehensive income (loss)......... 5,108.0 5,612.9 5,192.0 5,025.4 6,327.8 5,302.0 5,013.3
Book value per common share outstanding,
excluding accumulated other comprehensive
income (loss)............................ 13.32 15.17 13.61 13.95 17.85 16.46 15.80
Delinquencies greater than 60 days as a
percentage of managed finance
receivables.............................. 1.99% 1.72% 2.10% 1.76% 1.42% 1.19% 1.08%
(a) Subsequent to September 8, 1999, we no longer structure the
securitizations of the loans we originate in a manner that results in
gain-on-sale revenues. After that date, the gains we recognize are
generally related to the sale of the entire loan (with no interests
retained by the Company). For more information on this change, refer
to our annual report on Form 10-K for the fiscal year ended December
31, 2001 and our quarterly report on Form 10-Q for the period ended
March 31, 2002, both of which are incorporated by reference herein.
(b) Net income (loss) includes the following:
Three months ended
March 31, Years ended December 31,
-------------- -------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(Dollars in millions, except per share data)
Net investment gains (losses), net of income
tax and other items...................... $(34.1) $(59.1) $(242.8) $(198.1) $(111.9) $ (32.8) $ 44.1
Impairment charge, net of income tax........ - (5.0) (250.4) (324.9) (349.2) (355.8) (117.8)
Special charges and additional amortization,
net of income tax........................ (45.2) (10.0) (123.5) (534.9) - (148.0) -
Gain on sale of interest in riverboat, net
of income tax............................ - 122.6 122.6 - - - -
Provision for losses related to loan
guarantees, net of income tax............. (26.0) - (110.2) (150.0) (11.9) - -
Venture capital income (loss), net of
expenses and taxes........................ (35.5) (17.5) (15.2) (99.4) 170.0 - -
Amounts related to discontinued businesses
and other non-recurring items, net of
income tax................................ - (5.1) (34.4) 13.6 147.3 205.2 (44.8)
Cumulative effect of accounting change, net
of income tax............................. - - - (55.3) - - -
Extraordinary gain (loss) on extinguishment
of debt, net of income tax................ 4.0 .3 17.2 (5.0) - (42.6) (6.9)
For additional discussion of the above items refer to our annual report
on Form 10-K for the fiscal year ended December 31, 2001 and our
quarterly report on Form 10-Q for the period ended March 31, 2002, both
of which are incorporated by reference herein.
(c) All share and per-share amounts have been restated to reflect the
two-for-one stock split paid on February 11, 1997.
(d) Amounts under this heading are included to assist the reader in
analyzing the Company's financial position and results of operations.
Such amounts are not intended to, and do not, represent insurance
policy income, net income, shareholders' equity or book value per
share prepared in accordance with generally accepted accounting
principles.
(e) Includes premiums received from universal life products and products
without mortality or morbidity risk. Such premiums are not reported as
revenues under generally accepted accounting principles and were
$585.5 million and $610.5 million for the three months ended March 31,
2002 and 2001, respectively; $2,267.2 million in 2001; $2,731.1
million in 2000; $3,023.3 million in 1999; $2,585.7 million in 1998;
and $2,099.4 million in 1997. Also includes deposits in mutual funds
totaling $88.5 million and $111.3 million for the three months ended
March 31, 2002 and 2001, respectively; $468.7 million in 2001; $794.2
million in 2000; $479.3 million in 1999; $87.1 million in
13
1998; and $19.9 million in 1997. Also includes premiums related to our
discontinued major medical business, totaling $134.8 million and
$209.5 million for the three months ended March 31, 2002 and 2001,
respectively; $737.1 million in 2001; $910.6 million in 2000; $855.7
million in 1999; $878.2 million in 1998; and $744.0 million in 1997.
(f) Represents net income excluding the items described in note (b) above.
For additional discussion of the criteria we use to identify the items
excluded from operating earnings refer to our annual report on Form
10-K for the fiscal year ended December 31, 2001 and our quarterly
report on Form 10-Q for the period ended March 31, 2002, both of which
are incorporated by reference herein.
(g) Includes: (i) all of the Company's assets; (ii) the total finance
receivables managed by Conseco Finance applicable to the holders of
asset-backed securities sold by Conseco Finance in securitizations
structured in a manner that resulted in gain-on-sale revenue (adjusted
for the interests retained by the Company); and (iii) the total market
value of the investment portfolios managed by the Company for others
of $8.3 billion and $6.9 billion at March 31, 2002 and 2001,
respectively, $8.3 billion, $7.2 billion, $11.4 billion, $11.2 billion
and $5.1 billion at December 31, 2001, 2000, 1999, 1998 and 1997,
respectively.
(h) The Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 142, "Goodwill and Other Intangible Assets"
("SFAS 142") in June 2001. Under the new rules, intangible assets with
an indefinite life are no longer amortized in periods subsequent to
December 31, 2001, but are subject to annual impairment tests (or more
frequent under certain circumstances), effective January 1, 2002.
Conseco has determined that all of its goodwill has an indefinite life
and is therefore subject to the new rules. For additional discussion
of our adoption of SFAS 142 refer to our annual report on Form 10-K
for the fiscal year ended December 31, 2001 and our quarterly report
on Form 10-Q for the period ended March 31, 2002, both of which are
incorporated by reference herein. A reconciliation of reported net
income (loss) to adjusted net income (loss) before the extraordinary
gain (loss) on extinguishment of debt and cumulative effect of
accounting change is as follows assuming that the nonamortization
provisions of SFAS 142 were applied in all periods presented:
Three months ended
March 31, Years ended December 31,
-------------- -------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---- ---- ---- ---- ---- ---- ----
(Dollars in millions, except per share data)
Net income (loss), as reported.............. $(95.9) $ 84.1 $(405.9)$(1,191.2) $595.0 $467.1 $866.4
Add: amortization of goodwill, net of
income taxes.............................. - 27.5 109.6 112.5 110.1 110.2 84.5
------ ----- ------- -------- ------ ------ ------
Adjusted net income (loss).................. (95.9) 111.6 (296.3) (1,078.7) 705.1 577.3 950.9
Less: extraordinary (gain) loss on
extinguishment of debt, net of income
taxes..................................... (4.0) (.3) (17.2) 5.0 - 42.6 6.9
Add: cumulative effect of accounting change,
net of income taxes....................... - - - 55.3 - - -
------ ----- ------- -------- ------ ------ ------
Adjusted net income (loss) before
extraordinary (gain)loss on extinguishment
of debt and cumulative effect of
accounting change......................... $(99.9) $ 111.3 $(313.5)$(1,018.4) $705.1 $619.9 $957.8
====== ======= ======= ========= ====== ====== ======
Income (loss) per common share:
Basic:
Net income (loss) as reported........... $(.28) $.24 $(1.24) $(3.69) $ 1.83 $ 1.47 $ 2.72
Add: amortization of goodwill, net of
income taxes.......................... - .08 .32 .35 .34 .35 .27
----- ---- ------ ------ ------ ------ ------
Adjusted net income (loss).............. (.28) .32 (.92) (3.34) 2.17 1.82 2.99
Less: extraordinary (gain) loss on
extinguishment of debt, net of income
taxes................................. (.01) - (.05) .01 - .14 .02
Add: cumulative effect of accounting
change, net of income taxes........... - - - .17 - - -
----- ---- ------ ------ ------ ------ ------
Adjusted net income (loss) before
extraordinary (gain) loss on
extinguishment of debt and
cumulative effect of accounting
change............................ $(.29) $.32 $(.97) $(3.16) $ 2.17 $ 1.96 $ 3.01
===== ==== ===== ====== ====== ====== ======
Diluted:
Net income (loss) as reported.......... $(.28) $.23 $(1.24) $(3.69) $ 1.79 $ 1.40 $ 2.52
Add: amortization of goodwill, net of
income taxes......................... - .07 .32 .35 .33 .33 .25
----- ---- ------ ------ ------ ------ ------
Adjusted net income (loss)............. (.28) .30 (.92) (3.34) 2.12 1.73 2.77
Less: extraordinary (gain) loss on
extinguishment of debt, net of
income taxes......................... (.01) - (.05) .01 - .13 .02
Add: cumulative effect of accounting
change, net of income taxes.......... - - - .17 - - -
----- ---- ------ ------ ------ ------ ------
Adjusted net income (loss) before
extraordinary (gain) loss on
extinguishment of debt and
cumulative effect of accounting
change............................. $(.29) $.30 $ (.97) $(3.16) $ 2.12 $ 1.86 $ 2.79
===== ==== ====== ====== ====== ====== ======
14
USE OF PROCEEDS
The selling stockholder or his transferees will pay any underwriting
discounts and commissions and expenses for brokerage, accounting, tax or legal
services or any other expenses incurred in disposing of the shares. We will bear
all other costs, fees and expenses incurred in effecting the registration of the
shares covered by this prospectus, including, without limitation, all
registration and filing fees, NYSE listing fees, fees and expenses of our
counsel, fees and expenses of our accountants, and blue sky fees and expenses.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock was 1,020,000,000 shares as of March 31, 2002,
consisting of:
o 20,000,000 shares of preferred stock, of which 2,799,237 were
outstanding; and
o 1,000,000,000 shares of common stock, of which 346,002,814 shares were
outstanding.
Dividends. Holders of common stock are entitled to receive dividends and
other distributions in cash, stock or property, when, as and if declared by the
board of directors out of our assets or funds legally available for payment of
dividends or other distributions and will share equally on a per share basis in
all dividends and other distributions, subject to the rights of holders of
preferred stock.
Voting Rights. At every meeting of shareholders, every holder of common
stock is entitled to one vote per share. Subject to any voting rights which may
be granted to holders of preferred stock, any action submitted to shareholders
is approved if the number of votes cast in favor of the action exceeds the
number of votes against, except where other provision is made by law and subject
to applicable quorum requirements.
Liquidation Rights. If there is any liquidation dissolution or winding-up
of Conseco, whether voluntary or involuntary, the holders of common stock are
entitled to share equally in the assets available for distribution after payment
of all liabilities and provision for the liquidation preference of any shares of
preferred stock then outstanding.
The holders of common stock have no preemptive rights, cumulative voting
rights, subscription rights, or conversion rights and the common stock may not
be redeemed. The transfer agent and registrar for the common stock is First
Union National Bank. The common stock is traded on the New York Stock Exchange
under the symbol "CNC". All shares of common stock offered by this prospectus
are fully paid and non-assessable.
Preferred Stock
The board of directors may issue preferred stock in one or more series and
may fix the designations, preferences, powers and relative, participating,
optional and other rights, qualifications, limitations and restrictions on the
preferred stock, including the dividend rate, conversion rights, voting rights,
redemption price and liquidation preference, and may fix the number of shares to
be included in any such series. Any preferred stock may rank senior to the
common stock for the payment of dividends or amounts upon liquidation,
dissolution or winding-up, or both. In addition, any shares of preferred stock
may have class or series voting rights. Issuances of preferred stock, while
providing us with flexibility in connection with general corporate purposes,
may, among other things, have an adverse effect on the rights of holders of
common stock. The board of directors, without stockholder approval, can issue
preferred stock with voting and conversion rights that could adversely affect
the voting power and other rights of holders of common stock. Preferred stock
could thus be issued quickly with terms calculated to delay or prevent a change
of control of the Company or to make the removal of management more difficult.
In certain circumstances, this could have the effect of decreasing the market
price of the common stock.
Certain Provisions of the Company's Articles of Incorporation and Bylaws
Some provisions of our articles of incorporation and bylaws may make it
more difficult to effect a change in control if our board of directors
determines that the change in control would not be in the best interests of our
shareholders. It could be argued, contrary to the belief of our board of
directors, that these provisions are not in the best interests of the
shareholders to the extent that they will have the effect of tending to
discourage possible takeover bids, which might be at prices that are higher than
the recent market prices for our common stock. The most important of those
provisions are described below.
15
Our articles of incorporation authorize the establishment in the bylaws of
a classified board of directors. The bylaws, in turn, provide that the directors
serve staggered three-year terms, with the member of only one class being
elected in any year.
A classified board of directors may increase the difficulty of removing
incumbent directors, providing the directors with enhanced ability to retain
their positions. A classified board of directors may also make it more difficult
for a third party to acquire control of Conseco by means of a proxy contest. In
addition, the classification may make it more difficult to replace a majority of
directors for business reasons unrelated to a change in control.
Our articles of incorporation provide the holders of our voting stock will
not be entitled to vote on some business transactions, defined to include, among
other things, some mergers, consolidations, sales, leases, transfers or other
dispositions of a substantial part of our assets, with related persons,
including persons beneficially owning more than 10% of our outstanding voting
stock, nor may the business combination transactions be effected, unless:
o the relevant business combination has been approved by two-thirds of
the continuing directors; or
o the aggregate amount of the cash and the fair value of any
consideration other than cash to be received by any holder of our
common stock or preferred stock in the business combination for each
share of common stock or preferred stock will be at least equal to the
highest per share price paid by the related person to acquire any
shares of common stock or preferred stock, as the case may be,
beneficially owned by the related person.
As discussed above, our preferred stock may be issued from time to time in
one or more series with the rights, preferences, limitations and restrictions
that may be determined by the board of directors. The issuance of preferred
stock could be used, under some circumstances, as a method of delaying or
preventing a change of control of Conseco and could have a detrimental effect on
the rights of holders of common stock, including loss of voting control.
The provisions of our articles of incorporation regarding the classified
board of directors and business combination transactions may be amended only
with the affirmative approval of holders of at least 80% of our outstanding
voting stock.
Our by-laws may be amended by majority vote of the board of directors.
Provisions of Corporate and Insurance Laws
In addition to our articles of incorporation and bylaws, some provisions of
Indiana law may delay, deter or prevent a merger, tender offer or other takeover
attempt of the Company.
Under the Indiana Business Corporation Law, a director may, in considering
the best interests of a corporation, consider the effects of any action on
shareholders, employees, suppliers and customers of the corporation, on
communities in which offices or other facilities of the corporation are located,
and any other factors the director considers pertinent.
The Indiana Business Corporation Law provides that no business combination,
defined to include some mergers, sales of assets, sales of 5% or more of
outstanding stock, loans, recapitalizations or liquidations or dissolutions,
involving a corporation and an interested shareholder, defined to include any
holder of 10% or more of the corporation's voting stock, may be entered into
unless it has been approved by the board of directors of the corporation or:
o five years have expired since the acquisition of shares of the
corporation by the interested shareholder;
o all requirements of the corporation's articles of incorporation
relating to business combinations have been satisfied; and
o either (1) a majority of shareholders of the corporation, excluding
the interested shareholder, approve the business combination or (2)
all shareholders are paid fair value for their stock, as defined in
the statute.
16
However, this law does not restrict any offer to purchase all of a corporation's
shares.
The Indiana Business Corporation Law also provides that when a target
corporation, incorporated in Indiana and having its principal place of business,
principal office or substantial assets in Indiana, like the Company, has a
specified threshold of ownership by Indiana residents, any acquisition which,
together with its previous holdings, gives the acquiror at least 20% of the
target's voting stock triggers a shareholder approval mechanism. If the acquiror
files a statutorily required disclosure statement, the target's management has
50 days within which to hold a special meeting of shareholders at which all
disinterested shareholders of the target not affiliated with the acquiror or any
officer or inside director of the target consider and vote upon whether the
acquiror will have voting rights for the shares of the target held by it.
Without shareholder approval, the shares acquired by the acquiror have no voting
rights. If the acquiror fails to file the statutorily required disclosure
statement, the target can redeem the acquiror's shares at a price to be
determined according to procedures devised by the target. These provisions of
the Indiana Business Corporation Law apply to Indiana corporations, unless the
corporation has elected otherwise, which we have not done, in its articles of
incorporation or bylaws.
In addition, the insurance laws and regulations of the jurisdictions in
which we or our insurance subsidiaries do business may impede or delay a
business combination involving us. State insurance holding company laws and
regulations applicable to us generally provide that no person may acquire
control of a company, and thus indirect control of its insurance subsidiaries,
unless the person has provided required information to, and the acquisition is
approved or not disapproved by, the appropriate insurance regulatory
authorities. Generally, any person acquiring beneficial ownership of 10% or more
of the common stock would be presumed to have acquired control, unless the
appropriate insurance regulatory authorities upon advance application determine
otherwise.
SELLING STOCKHOLDER
Under our employment agreement with Gary C. Wendt, we issued to him
3,200,000 shares of common stock that are subject to forfeiture until June 30,
2002. After the shares are no longer subject to forfeiture, Mr. Wendt may donate
all or a portion of these shares to third parties, including charities, sell the
shares or hold the shares.
The following table sets forth, to our knowledge, certain information about
the selling stockholder as of May 31, 2002.
Percentage of Number of Percentage of
Number of Shares Shares Shares Shares
Beneficially Beneficially Number of Beneficially Beneficially
Name of Selling Owned Prior to Owned Prior to Shares Offered Owned After Owned After
Stockholder Offering (1) Offering (1) Hereby Offering (1)(2) Offering (1)(2)
-------------------------------------------------------------------------------------------------------------------
Gary C. Wendt (3) 6,892,567(4) 2.0% 3,200,000 3,692,567 1.1%
------------
(1) Except as otherwise indicated, the number of shares beneficially owned is
determined under rules promulgated by the SEC, and the information may not
represent beneficial ownership for any other purpose. The selling
stockholder has sole voting power and investment power with respect to all
shares listed as owned by such selling stockholder.
(2) We do not know when or in what amounts the selling stockholder or his
transferees may offer shares for sale. They may not sell any of the shares
offered by this prospectus. Because there is no agreement, arrangement or
understanding with respect to the sale of any of the shares that will be
held by the selling stockholder after completion of the offering, we have
assumed that, after completion of the offering, none of the shares covered
by the prospectus will be held by the selling stockholder.
(3) Gary C. Wendt is one of our directors and our Chairman of the Board and
Chief Executive Officer.
(4) Includes 2,000,000 shares subject to options which are exercisable within
60 days of May 31, 2002 and 64,282 shares held by Mr. Wendt's wife. Mr.
Wendt expressly disclaims beneficial ownership of the shares held by his
wife.
17
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time to
time by the selling stockholder. The term "selling stockholder" includes
pledgees, donees, transferees or other successors in interest selling shares
received after the date of this prospectus from the selling stockholder as a
pledge, gift or other non-sale related transfer. To the extent required, this
prospectus may be amended and supplemented from time to time to describe a
specific plan of distribution.
The selling stockholder will act independently of Conseco in making
decisions with respect to the timing, manner and size of each sale. These sales
may be made at prices on the New York Stock Exchange and under terms then
prevailing or at prices related to the then current market price. Sales may also
be made in negotiated transactions, including pursuant to one or more of the
following methods:
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus,
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers,
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction, and
o in privately negotiated transactions.
In connection with distributions of the shares or otherwise, the selling
stockholder may:
o enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the shares in
the course of hedging the positions they assume,
o sell the shares short and redeliver the shares to close out such short
positions,
o enter into option or other transactions with broker-dealers or other
financial institutions which require the delivery to them of shares
offered by this prospectus, which they may in turn resell, or
o pledge shares to a broker-dealer or other financial institution,
which, upon a default, they may in turn resell.
Some of the preceding actions may not be available to the selling
stockholder to the extent he remains as a director or executive officer of
Conseco.
In addition, any shares that qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this prospectus.
In effecting sales, broker-dealers or agents engaged by the selling
stockholder may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholder, in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling stockholder,
and any broker-dealers and any other participating broker-dealers who execute
sales for the selling stockholder may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with these sales. Any profits
realized by the selling stockholder and the compensation of such broker-dealers
may be deemed to be underwriting discounts and commissions.
In order to comply with the securities laws of certain states, the shares
must be sold in those states only through registered or licensed brokers or
dealers. In addition, in certain states the shares may not be sold unless they
have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and is
complied with.
18
We have advised the selling stockholder that the anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of shares in the market
and to the activities of the selling stockholder and his affiliates. In
addition, we will make copies of this prospectus available to the selling
stockholder for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholder may indemnify any broker-dealer
that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth:
o the number of shares being offered,
o the terms of the offering, including the name of any underwriter,
dealer or agent,
o the purchase price paid by any underwriter,
o any discount, commission and other underwriter compensation,
o any discount, commission or concession allowed or reallowed or paid to
any dealer, and
o the proposed selling price to the public.
We have agreed to indemnify the selling stockholder against certain
liabilities, including certain liabilities under the Securities Act.
We intend to keep the Registration Statement of which this prospectus
constitutes a part effective until the earlier of (1) such time as all of the
shares covered by this prospectus have been disposed of pursuant to the
Registration Statement or (2) such time as when any remaining shares may be sold
without further restrictions or limitation under Rule 144 of the Securities Act.
INDEMNIFICATION
Our Bylaws provide for indemnification of our officers and directors for
actions, suits or proceedings in which they are wholly successful or they are
determined to have acted in good faith and in a manner they reasonably believed
to be in, or not opposed to, our best interests and in which, with respect to
criminal proceedings, they had no reasonable cause to believe their conduct was
unlawful.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to our directors, officers or persons
controlling us under the provisions described above, we have been informed that
in the opinion of the Securities and Exchange Commission indemnification is
against public policy as expressed in that Act and is therefore unenforceable.
LEGAL MATTERS
The validity of the securities offered hereby have been passed upon for us
by David K. Herzog, our Executive Vice President and General Counsel. Mr. Herzog
is a full-time employee and currently beneficially owns shares of our common
stock and options to purchase additional shares.
EXPERTS
The consolidated financial statements of Conseco, Inc. and subsidiaries for
the year ended December 31, 2001, incorporated in this prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 2001 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
19
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may read and copy any
document we file at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms.
We have filed with the SEC a registration statement under the Securities
Act of 1933 to register the securities offered by this prospectus. This
prospectus constitutes only part of the registration statement and does not
contain all of the information in the registration statement and its exhibits
because parts of the registration statement are allowed to be omitted by SEC
rules. Statements in this prospectus or in any prospectus supplement about
documents filed as an exhibit to the registration statement or otherwise filed
with the SEC are only summary statements and may not contain all the information
that may be important to you. For further information about Conseco and the
securities offered under this prospectus, you should read the registration
statement, including its exhibits and the documents incorporation into it by
reference.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. Information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities offered under this prospectus.
o Annual Report on Form 10-K for the year ended December 31, 2001;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2002;
o Current Reports on Form 8-K dated January 30, 2002, February 21, 2002
and March 18, 2002;
o The definitive proxy statement for our 2002 annual meeting of
shareholders; and
o The description of our common stock in the registration statements
filed by us with the SEC and any amendment or report filed for the
purpose of updating the description.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address: Tammy M. Hill, Senior Vice President,
Investor Relations; Conseco, Inc.; 11825 North Pennsylvania Street; Carmel,
Indiana 46032; (317) 817-2893.
No person has been authorized to give any information or to make any
representation other than those contained in this prospectus in connection with
the offering of the common stock. If information or representations are given or
made you must not rely on it as if we authorized it. Neither the delivery of
this prospectus nor any sale made hereunder shall, under any circumstances,
create an implication that the information contained or incorporated by
reference herein is correct as of any time subsequent to its date or that there
has been no change in our affairs. This prospectus does not constitute an offer
to sell or a solicitation of an offer to buy any securities offered hereby in
any jurisdiction in which such offer or solicitation is not permitted, or to
anyone whom it is unlawful to make such offer or solicitation.
20
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, 2001.
2. Quarterly Report on Form 10-Q of the Company for the quarter ended
March 31, 2002.
3. Current Reports on Form 8-K of the Company dated January 30, 2002,
February 21, 2002 and March 18, 2002.
4. The definitive proxy statement for the Company's 2002 annual meeting
of shareholders.
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, General Counsel and Secretary of the Company. Mr. Herzog beneficially
owns shares of Common Stock and options to purchase shares of Common Stock.
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 the Company 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.
II-1
The above discussion of the Company'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.
The 3,200,000 shares of the Registrant's common stock issued to the selling
stockholder pursuant to his employment agreement with the Registrant and
subsequently included in this registration statement for reoffer and resale
pursuant to the reoffer prospectus included herein were originally issued in
reliance on the exemption from registration contained in Section 4(2) of the
Securities Act of 1933. These shares were issued in transactions that the
Registrant believes did not involve a public offering based on the number and
nature of the persons involved and the private character of such transactions.
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.
(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
II-2
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.
II-3
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 31st day of May,
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 Executive May 31, 2002
------------------------------------------- Officer (Principal Executive Officer)
Gary C. Wendt
/s/ William J. Shea President, Chief Operating Officer and Acting May 31, 2002
------------------------------------------- Chief Financial Officer (Principal Financial
William J. Shea Officer)
/s/ James S. Adams Senior Vice President, Chief Accounting May 31, 2002
------------------------------------------- Officer and Treasurer (Principal Accounting
James S. Adams Officer)
/s/ Julio A. Barea Director May 31, 2002
-------------------------------------------
Julia A. Barea
/s/ Carol Bellamy Director May 31, 2002
-------------------------------------------
Carol Bellamy
/s/ Lawrence M. Coss Director May 31, 2002
-------------------------------------------
Lawrence M. Coss
/s/ Thomas M. Hagerty Director May 31, 2002
-------------------------------------------
Thomas M. Hagerty
/s/ David V. Harkins Director May 31, 2002
-------------------------------------------
David V. Harkins
/s/ M. Phil Hathaway Director May 31, 2002
-------------------------------------------
M. Phil Hathaway
S-1
Signatures Title (Capacity) Date
---------- ---------------- ----
/s/ John M. Mutz Director May 31, 2002
-------------------------------------------
John M. Mutz
/s/ Robert S. Nickoloff Director May 31, 2002
-------------------------------------------
Robert S. Nickoloff
/s/ Samme Thompson Director May 31, 2002
-------------------------------------------
Samme Thompson
S-2
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