RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement"), dated as of June 28,
2000, between CONSECO, INC., an Indiana corporation (the "Company"), and Gary C.
Wendt, an employee of the Company (the "Employee").
RECITALS
WHEREAS, the Employee has not previously been an employee of the
Company and as a material inducement to the Employee entering into an Employment
Agreement of even date herewith (the "Employment Agreement") with the Company,
the Board of Directors of the Company (the "Board") has determined to grant to
the Employee an award of shares of common stock of the Company which is subject
to certain restrictions; and
WHEREAS, the Company and the Employee 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 Award. As of the date of this Agreement, the Company hereby
grants to the Employee an award of three million two hundred thousand
(3,200,000) shares (the "Restricted Shares") of the Company's common stock (the
"Common Stock"), upon the terms and conditions set forth in this Agreement.
2. Representations of Employee. The Employee hereby (i) accepts the
award of the Restricted Shares described in paragraph 1; (ii) agrees that the
Restricted Shares will be held by him and his successors subject to (and will
not be disposed of except in accordance with) all of the restrictions, terms and
conditions contained in this Agreement; (iii) represents that he is acquiring
the Restricted Shares for investment and not with a view to or for resale or
distribution thereof; (iv) understands that the issuance of the Restricted
Shares has not been registered under the Securities Act of 1933, as amended (the
"Act"), or any applicable state securities laws and that any transfer or resale
of the Restricted Shares will be subject to restriction under such laws; and (v)
agrees that any certificates issued for the Restricted Shares may bear the
following legend or such other legend as the Company, from time to time, deems
appropriate:
"The transfer of the Shares represented by this certificate is
restricted by the terms of a Restricted Stock Agreement dated as of
June 28, 2000, a copy of which is on file at the Company's principal
office; no transfer of the Shares represented by this certificate shall
be valid or effective until
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the conditions with respect to such transfer contained in the Agreement
have been met."
3. Vesting. Subject to paragraph 4, the Restricted Shares shall become
fully vested and nonforfeitable if Employee still is, and since the date of this
Agreement has continuously been, employed by the Company on June 30, 2002;
provided, however, that all Restricted Shares shall vest earlier as provided in
the Employment Agreement. Except as otherwise provided in this Agreement, the
Employee may not sell, assign, transfer, pledge or otherwise dispose of or
encumber any of the Restricted Shares, or any interest therein, until his rights
in such Shares have vested in accordance with this Agreement (the period of time
until the Restricted Shares have vested is referred to as the "Restriction
Period"). Any purported sale, assignment, transfer, pledge or other disposition
or encumbrance in violation of this Agreement will be void and of no effect.
4. HSR Act. The Company and the Employee hereby acknowledge that
conferring voting rights on the Employee may subject the Company or the Employee
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 the Employee being able to vote the Restricted Stock,
including expiration of any applicable waiting period, then the Company and the
Employee agree to make all notifications or other filings required under the HSR
Act as soon as reasonably practicable after issuance of the Restricted Stock.
5. Voting and Dividends. After compliance with the HSR Act as provided
in paragraph 4 and except as provided in this paragraph, with respect to the
Restricted Shares, the Employee shall have all of the rights of a shareholder of
the Company, including the right to vote the Restricted Shares during the
Restriction Period. Any cash dividends paid on any Restricted Shares during the
Restriction Period shall be paid to the Employee as compensation. In the event
any non-cash dividends or other distributions, whether in property, or stock of
another company, are paid on any Restricted Shares during the Restriction
Period, such non-cash dividends or other distributions payable to the Employee
shall be retained by the Company and not delivered to the Employee until such
time as the Restriction Period on the shares with respect to which such non-cash
dividends or other distributions have been paid shall have lapsed and such
shares become fully vested and not subject to forfeiture to the Company. Such
non-cash dividends or distributions with respect to the Restricted Shares shall
be paid to the Employee upon the lapse of the restrictions or retained by the
Company in the event the Restricted Shares on which such non-cash dividends or
other distributions were paid are forfeited to the Company. Stock dividends and
shares issued as a result of any stock-split, if any, issued with respect to the
Restricted Shares shall be treated as additional Restricted Shares and shall be
subject to the same restrictions and other terms and conditions that apply with
respect to, and shall vest or be forfeited at the same time as, the Restricted
Shares with respect to which such stock dividends or shares are issued.
6. Forfeiture. Except as provided elsewhere herein or by the
Compensation Committee of the Board (the "Committee"), in its sole discretion,
upon termination of
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employment with the Company the Employee shall forfeit all unvested Restricted
Shares, and shall not receive any compensation for such forfeited Restricted
Shares. The Employee shall have no further rights as a shareholder of the
Company with respect to the forfeiture, including, without limitation, any right
to receive any distribution payable to shareholders of record on or after the
date of such forfeiture.
7. Certificates. As soon as practicable after the date of this
Agreement, the Company shall issue a stock certificate in respect of the
Restricted Shares which will be registered in the Employee's name, and shall
bear whatever legend the Committee shall determine, including, but not limited
to, the legend set forth in paragraph 2. Such certificate shall be held by the
Company pending vesting pursuant to paragraph 3. To the extent the Restricted
Shares become vested, the Company shall promptly provide the Employee (or in the
case of his death, his designated beneficiary) the appropriate certificate for
the vested shares of Common Stock.
8. Registration Rights. The Company shall prepare and file no later
than January 1, 2002, a registration statement on Form S-3 under the Act
("Registration Statement") to register the resale of the Restricted Shares then
owned by the Employee. The Company will use its reasonable best efforts to cause
the Registration Statement to be declared effective on the date requested by the
Employee. The Company and the Employee shall enter into underwriting, custody
and indemnification agreements containing customary terms, representations and
covenants with one or more managing underwriters selected by the Employee
(subject to the approval of the Company, which approval shall not unreasonably
be withheld). The Company shall pay all of the legal, accounting, printing,
filing and other fees and expenses of such registration, except that the
Employee shall pay all underwriters' discounts and commissions relating to the
sale of his Common Stock and the fees and disbursements of his legal counsel, if
any.
9. Withholding. In connection with the transfer of shares of Common
Stock as a result of the vesting of Restricted Shares, the Company shall have
the right to require the Employee 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. The Employee agrees to
notify the Company if he makes the election provided for in Section 83(b) of the
Internal Revenue Code of 1986, as amended, with respect to the Restricted
Shares.
10. No Right to Employment. Nothing in this Agreement shall confer upon
the Employee 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 Employee in accordance with the Employment
Agreement.
11. Entire Agreement. This Agreement and the Employment Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof. Any
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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.
12. 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.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the successors, assigns and heirs of the respective
parties.
14. 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.
15. 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.
16. 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 duly executed
this Agreement as of the day and year 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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