NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement ("Agreement"), dated as of
June 28, 2000, by and between CONSECO, INC., an Indiana corporation (the
"Company") and Gary C. Wendt (the "Optionee").
RECITALS
WHEREAS, the Optionee has not been previously employed by the Company
and as a material inducement to the Optionee entering into an Employment
Agreement of even date herewith (the "Employment Agreement") with the Company,
the Board of Directors of the Company has granted the Optionee an option to
acquire shares of common stock of the Company ("Common Stock"); and
WHEREAS, the Company and the Optionee desire to set forth the terms
and conditions of the award;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee an option
(the "Option") to purchase ten million (10,000,000) shares of Common Stock (the
"Shares"). The Option is intended and shall be treated as a nonqualified stock
option and not as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). This Option is not being granted
under any of the Company's stock option plans in existence as of the date
hereof.
2. Option Price. The per share exercise price (the "Option Price") to
be paid by the Optionee upon the exercise of the Option shall be $5.875.
3. Exercise of Option. Subject to paragraphs 4 and 5, twenty percent
(20%) of the Shares underlying the Option shall vest immediately but not be
exercisable prior to June 30, 2000; provided that Optionee still is, and since
the date of this Agreement has continuously been employed by the Company as of
each vesting date, the balance of the Shares underlying Option shall vest in
four annual increments of twenty percent (20%) each commencing June 30, 2002 and
each June 30 thereafter through June 30, 2005; provided, however, that an
aggregate of more than six million (6,000,000) of the Shares underlying the
Option shall not be exercisable in whole or in part before the calendar year
following the calendar year in which the termination date of Executive's
employment with the Company occurs. Notwithstanding the foregoing, all of the
Shares shall vest earlier as provided in the Employment Agreement.
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4. Termination of Option. The Option, to the extent not previously
exercised, shall terminate and become null and void on the earlier to occur of
the following: (i) ten (10) years from the date of this Agreement; or (ii)
eighteen (18) months after the date of termination of the Optionee's employment
with the Company.
5. HSR Act. The Company and the Optionee hereby acknowledge that the
exercise of this Option may subject the Company or the Optionee to the filing
requirements of the Hart- Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"). If any approval under the HSR Act shall be required
prior to exercise, including expiration of any applicable waiting period, then
the Company and the Optionee agree to make all notifications or other filings
required under the HSR Act as soon as reasonably practicable after issuance of
this Option. The termination date provided for in paragraph 4 shall be extended
while any such regulatory approval or waiting period is pending.
6. Exercise of Option.
(a) The Optionee may exercise the Option with respect to all or any
part of the Shares then exercisable hereunder by giving the Secretary of the
Company written notice of intent to exercise. The notice of exercise shall
specify the number of Shares as to which the Option is to be exercised and the
date of exercise thereof, which date shall be at least five days after the
giving of such notice unless an earlier time shall have been mutually agreed
upon.
(b) The Optionee must make full payment (in U.S. dollars) of the
Option Price on or before the exercise date specified in the notice of exercise
in cash or, with the consent of the Company, in whole or in part through the
surrender of shares of Common Stock the Optionee has owned for more than six
months or pursuant to a so-called "cashless exercise" arrangement through a
broker-dealer to whom Optionee or a Permitted Transferee (as defined in Section
9), has submitted an irrevocable notice of exercise which includes instructions
to deliver promptly to the Company an amount of sale or loan proceeds sufficient
to pay such exercise price or Withholding Taxes (as defined in paragraph 13), as
applicable. On the exercise date specified in the Optionee's notice or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Optionee, a certificate or certificates for the Shares then being purchased upon
full payment for such Shares.
(c) If the Optionee fails to pay for any of the Shares specified in
such notice as provided in the foregoing subparagraph (b), or fails to accept
delivery thereof, the Optionee's rights to purchase such Shares may be
terminated by the Company. The date specified in the Optionee's notice as the
date of exercise shall be deemed the date of exercise of the Option provided
that payment in full for the Shares to be purchased upon such exercise shall
have been received by such date.
7. Adjustment of Option. If any dividend is declared on the Common
Stock which is payable in Common Stock, the number of Shares to which the Option
is subject shall be multiplied by (and the exercise price of the Option shall be
divided by) the sum payable as a
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dividend on each share of Common Stock. In the event of any change in the number
or kind of outstanding shares of Common Stock by reason of any recapitalization,
reorganization, merger, consolidation, stock split or any similar change
affecting the Common Stock (other than a dividend payable in Common Stock), the
Company shall make an appropriate adjustment in the number of Shares and
exercise price applicable to the Option so that, (and shall require any other
parties to such transaction to agree that) after such adjustment, the Option (or
a corresponding option held in any successor entity) shall represent a right to
receive, upon payment of the same aggregate exercise price as in effect
immediately before such adjustment, the same consideration (or if such
consideration is not available, other consideration of the same value) that
Optionee would have received in connection with such recapitalization,
reorganization, merger, consolidation, stock split or any similar change if he
had owned on the applicable record date a number of shares of Common Stock equal
to the number of Shares subject to the Option prior to such adjustment.
8. No Rights of Shareholder. Neither the Optionee nor any personal
representative shall be, or shall have any of the rights and privileges of, a
shareholder of the Company with respect to any of the Shares, in whole or in
part, prior to the date of exercise of the Option. No adjustment shall be made
for dividends or distributions or other rights for which the record date is
prior to the date payment is received by the Company.
9. Transferability. During the Optionee's lifetime, the Option shall be
exercisable only by the Optionee or any guardian or legal representative of the
Optionee, and the Option shall not be transferable except to a person (a
"Permitted Transferee") to whom transfer has been approved in advance by the
Compensation Committee of the Board of Directors.
10. Notice. Any notice to the Company provided for in this instrument
shall be mailed to the Company at its principal executive office in Carmel,
Indiana, Attention: Secretary. Any notice to the Optionee shall be addressed to
the Optionee at the current address shown on the payroll records of the Company.
Any notice shall be deemed to be duly given if and when properly addressed and
posted by registered or certified mail, postage prepaid.
11. Representations of Optionee. The Optionee understands that the
Shares issuable upon exercise of the Option have not been registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
that the Shares when issued pursuant to the exercise of the Option will be
subject to restrictions on transfer.
12. Registration Rights. Within sixty (60) days after the date hereof,
the Company shall prepare and file with the Securities and Exchange Commission a
registration statement on Form S-8 (a "Registration Statement") under the Act or
amend an existing Registration Statement, registering the issuance and resale of
the Shares to be issued upon the exercise of the Option granted hereby, and
shall maintain the effectiveness of such Registration Statement during the term
of the Option and for a period of twelve (12) months after the Option is
exercised or expires in full.
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13. Withholding. In connection with the issuance of the Shares as a
result of the exercise of the Option, the Company shall have the right to
require the Optionee to pay an amount in cash sufficient to cover any tax,
including any Federal, state or local income tax, required by any governmental
entity to be withheld or otherwise deducted and paid with respect to such
transfer ("Withholding Taxes"), and to make payment to the appropriate taxing
authority of the amount of such Withholding Taxes.
14. No Right to Employment. Nothing in this Agreement shall confer upon
the Optionee any right to continue in the employ of the Company or shall
interfere with or restrict in any way the rights of the Company which are hereby
expressly reserved, to discharge the Optionee in accordance with the Employment
Agreement.
15. Entire Agreement. This Agreement and the Employment Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof. Any term or provision of this Agreement may be waived at any time
by the party which is entitled to the benefits thereof, and any term or
provision of this Agreement may be amended or supplemented at any time by the
mutual consent of the parties hereto, except that any waiver of any term or
condition, or any amendment, of this Agreement must be in writing.
16. Governing Law. The laws of the State of Indiana shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
17. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the successors, assigns and heirs of the respective
parties.
18. Notices. All notices and other communications required or permitted
under this Agreement shall be written and shall be delivered personally or sent
by registered or certified first-class mail, postage prepaid and return receipt
required, addressed as follows: if to the Company, to the Company's executive
offices in Carmel, Indiana, attention: General Counsel, and if to the Employee
or his successor, to the address last furnished by the Employee to the Company.
Each notice and communication shall be deemed to have been given when received
by the Company or the Employee.
19. No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
20. Titles. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of the Agreement. The
masculine pronoun shall include the feminine and neuter and the singular shall
include the plural, when the context so indicates.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date first above written.
CONSECO, INC.
By: /s/ David V. Harkins
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David V. Harkins, Interim Chairman of
the Board and Chief Executive Officer
/s/ Gary C. Wendt
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Gary C. Wendt
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