Exhibit 10.15
[date]
<<Fname>> <<Mname>> <<Lname>>
<<CompanyName>>
<<Street>>
<<POBox>>
<<CityStateZip>>
Re: Grant of Restricted Stock Award
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Dear Mr. <<Lname>>:
Conseco, Inc., a Delaware corporation (the "Company"), is pleased to
advise you that pursuant to the Company's 2003 Long-Term Equity Incentive Plan
(the "Plan"), the Company has granted you an award of
<<totalshares>> restricted shares of Common Stock (the "Restricted Shares"),
effective as of <<DateGrant>> (the "Date of Grant"), subject to the terms and
conditions of the Plan and the terms and conditions set forth herein. Any
capitalized terms used herein and not defined herein have the meaning set forth
in the Plan.
1. Issuance of Restricted Shares. The Restricted Shares shall be
issued to you as of the Date of Grant, and, upon your payment to the Company of
the aggregate par value thereof or such larger amount as the Board may determine
to constitute capital under Section 154 of the Delaware General Corporation Law,
as amended (unless such Restricted Shares are treasury shares), the Restricted
Shares shall be fully paid and nonassessable and shall be represented by a
certificate or certificates issued in your name and endorsed with an appropriate
legend referring to the restrictions hereinafter set forth.
2. Restrictions on Transfer. You may not sell, assign, transfer,
convey, pledge, exchange or otherwise encumber or dispose the Restricted Shares,
except to the Company, until they have become nonforfeitable as provided in
paragraph 3 hereof and in accordance with Section 7 of the Plan. Any purported
encumbrance or disposition in violation of the provisions of this paragraph 2
shall be void ab initio, and the other party to any such purported transaction
shall not obtain any rights to or interest in the Restricted Shares.
3. Lapse of Restrictions on Restricted Shares.
(a) Except as provided in paragraph 3(b) below, the restrictions on
the Restricted Shares shall lapse and the Restricted Shares shall become
nonforfeitable if you remain a director, officer or employee (or an approved
service provider) of the Company or a Subsidiary through the lapse dates set
forth below with respect to the number of Restricted Shares set forth next to
such dates:
Number (and Percentage) of Restricted
Shares that become non-restricted
Lapse Date on such Lapse Date
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<<LapseDate1>>
<<LapseDate2>>
(b) Except as expressly set forth in any written employment agreement
between you and the Company or a Subsidiary (whether entered into prior to or
after the date of this letter agreement), in the event of a Change in Control,
any restrictions on the Restricted Shares shall lapse and the Restricted Shares
shall become nonforfeitable.
4. Forfeiture of Restricted Shares. Except as expressly set forth in
any written employment agreement between you and the Company or a Subsidiary
(whether entered into prior to or after the date of this letter agreement), if
you cease to be (or do not become) a director, officer or employee of the
Company or a Subsidiary (or cease (or do not begin) to otherwise perform
services for the Company or a Subsidiary) for any reason, except as and to the
extent the restrictions on the Restricted Shares have lapsed (i.e., become
nonforfeitable pursuant to paragraph 3 hereof), you shall forfeit the portion of
the Restricted Shares with respect to which the restrictions have not lapsed and
the certificate(s) representing the Restricted Shares so forfeited shall be
canceled.
5. Dividend, Voting and Other Rights. Except as otherwise provided in
this letter agreement, from and after the Date of Grant, you shall have all of
the rights of a stockholder with respect to the Restricted Shares, including the
right to vote the Restricted Shares and receive any dividends that may be paid
thereon; provided, however, that any additional Common Stock or other securities
that you may become entitled to receive pursuant to a stock dividend, stock
split, recapitalization, combination of shares, merger, consolidation,
separation or reorganization or any other change in the capital structure of the
Company shall be subject to the same risk of forfeiture and restrictions on
transfer as the forfeitable Restricted Shares in respect of which they are
issued or transferred and shall become Restricted Shares for the purposes of
this letter agreement.
6. Retention of Stock Certificate(s) by the Company. The
certificate(s) representing the Restricted Shares shall be held in custody by
the Company, together with a stock power that you have endorsed in blank with
respect thereto, until such shares have become nonforfeitable in accordance with
paragraph 3 and in accordance with Section 7 of the Plan.
7. Certain Definitions. For the purposes of this letter agreement, the
following terms have the meanings set forth below:
"Board" means the Board of Directors of the Company.
"Change in Control" means the occurrence of any of the following
events:
(i) the acquisition (other than an acquisition in connection
with a "Non-Control Transaction" (as defined below)) by any "person" (as such
term is used in Sections
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13(d) and 14(d) of the Exchange Act) of "beneficial ownership" (as such term is
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company or its Ultimate Parent representing 51%
or more of the combined voting power of the then outstanding securities of the
Company or its Ultimate Parent entitled to vote generally with respect to the
election of the board of directors of the Company or its Ultimate Parent; or
(ii) as a result of or in connection with a tender or
exchange offer or contest for election of directors, individual board members of
the Company (identified as of the date of commencement of such tender or
exchange offer, or the commencement of such election contest, as the case may
be) cease to constitute at least a majority of the board of directors of the
Company; or
(iii) the consummation of a merger, consolidation or
reorganization with or into the Company unless (x) the stockholders of the
Company immediately before such transaction beneficially own, directly or
indirectly, immediately following such transaction securities representing 51%
or more of the combined voting power of the then outstanding securities entitled
to vote generally with respect to the election of the board of directors of the
Company (or its successor) or, if applicable, the Ultimate Parent and (y)
individual board members of the Company (identified as of the date that a
binding agreement providing for such transaction is signed) constitute at least
a majority of the board of directors of the Company (or its successor) or, if
applicable, the Ultimate Parent (a transaction to which clauses (x) and (y)
apply, a "Non-Control Transaction").
"Fair Market Value" of a share of Common Stock of the Company
means, as of the date in question, the officially-quoted closing selling price
of the stock (or if no selling price is quoted, the bid price) on the principal
securities exchange on which the Common Stock is then listed for trading
(including for this purpose the Nasdaq National Market) (the "Market") for the
applicable trading day or, if the Common Stock is not then listed or quoted in
the Market, the Fair Market Value shall be the fair value of the Common Stock
determined in good faith by the Board.
"Ultimate Parent" means the parent corporation (or if there is more
than one parent corporation, the ultimate parent corporation) that, following a
transaction, directly or indirectly beneficially owns a majority of the voting
power of the outstanding securities entitled to vote with respect to the
election of the board of directors of the Company (or its successor).
8. Withholding Taxes. If the Company or any Subsidiary shall be
required to withhold any federal, state, local or foreign tax in connection with
any issuance or vesting of Restricted Shares or other securities pursuant to
this letter agreement, and the amounts available to the Company or such
Subsidiary for such withholding are insufficient, you shall pay the tax or make
provisions that are satisfactory to the Company or such Subsidiary for the
payment thereof. If permitted at such time by the Company, you may elect to
satisfy all or any part of any such withholding obligation by surrendering to
the Company or such Subsidiary a portion of the Restricted Shares that become
nonforfeitable hereunder, and the Restricted Shares so surrendered by you shall
be credited against any such withholding obligation at the Fair Market Value of
such Restricted Shares on the date of such surrender.
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9. Rights of Participants. Nothing in this letter agreement shall
interfere with or limit in any way the right of the Company to terminate your
employment or other performance of services at any time, nor confer upon you any
right to continue in the employ or as a director or officer of, or in the
performance of other services for, the Company or a Subsidiary for any period of
time, or to continue your present (or any other) rate of compensation or level
of responsibility. Nothing in this letter agreement shall confer upon you any
right to be selected again as a Plan participant, and nothing in the Plan or
this letter agreement shall provide for any adjustment to the number of
Restricted Shares upon the occurrence of subsequent events except as provided in
paragraph 5 above or the Plan.
10. Relation to Other Benefits. Any economic or other benefit to you
under this letter agreement or the Plan shall not be taken into account in
determining any benefits to which you may be entitled under any profit-sharing,
retirement or other benefit or compensation plan maintained by the Company or a
Subsidiary and shall not affect the amount of any life insurance coverage
available to any beneficiary under any life insurance plan covering employees of
the Company or a Subsidiary.
11. Amendments to Plan. Any amendment to the Plan shall be deemed to
be an amendment to this letter agreement to the extent that the amendment is
applicable hereto; provided, however, that no amendment shall adversely affect
the your rights under this letter agreement without your consent.
12. Severability. Whenever possible, each provision of this letter
agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this letter agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this letter agreement.
13. Conformity with Plan. This letter agreement and the Restricted
Shares granted pursuant hereto are intended to conform in all respects with, and
are subject to all applicable provisions of, the Plan (which is incorporated
herein by reference). Inconsistencies between this letter agreement and the Plan
shall be resolved in accordance with the terms of the Plan. By executing and
returning the enclosed copy of this letter agreement, you acknowledge your
receipt of this letter agreement and the Plan and agree to be bound by all of
the terms of this letter agreement and the Plan.
14. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this letter agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto whether so
expressed or not.
15. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this letter agreement shall
be in writing and shall be deemed to have been given when (i) delivered
personally, (ii) mailed by certified or registered mail, return receipt
requested and postage prepaid, (iii) sent by facsimile or (iv) sent by reputable
overnight courier, to the recipient. Such notices, demands and other
communications shall be sent to you at the address specified in this letter
agreement and to the Company at 11825 N.
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Pennsylvania Street, P.O. Box 1911 (46082), Carmel, Indiana 46032, Attn: Karl
Kindig, or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
16. Governing Law. THE VALIDITY, CONSTRUCTION, INTERPRETATION,
ADMINISTRATION AND EFFECT OF THE PLAN, AND OF ITS RULES AND REGULATIONS, AND
RIGHTS RELATING TO THE PLAN AND TO THIS LETTER AGREEMENT, SHALL BE GOVERNED BY
THE SUBSTANTIVE LAWS, BUT NOT THE CHOICE OF LAW RULES, OF THE STATE OF DELAWARE.
17. Descriptive Headings. The descriptive headings of this letter
agreement are inserted for convenience only and do not constitute a part of this
letter agreement.
18. Counterparts. This letter agreement may be executed simultaneously
in two or more counterparts, each of which shall constitute an original, but all
of which taken together shall constitute one and the same letter agreement.
19. Entire Agreement. This letter agreement, any written employment
agreement between you and the Company or a Subsidiary to the extent contemplated
by paragraphs 3(b) or 4 hereof, and the terms of the Plan constitute the entire
understanding between you and the Company, and supersede all other agreements,
whether written or oral, with respect to your acquisition of the Restricted
Shares.
* * * * *
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Signature Page to Restricted Stock Award Agreement
Please execute the extra copy of this letter agreement in the space
below to confirm your understanding and acceptance of the agreements contained
in this letter agreement.
Very truly yours,
CONSECO, INC.
By:
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Name:
----------------------------
Title:
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Enclosures: Extra copy of this letter agreement
Copy of the Plan
The undersigned hereby acknowledges having read this letter agreement
and the Plan and hereby agrees to be bound by all provisions set forth herein
and in the Plan.
GRANTEE
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<<Fname>> <<Mname>> <<Lname>>
Dated as of:
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