UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of
the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): February 17, 2009
CONSECO, INC.
(Exact name of registrant as specified in its charter)
Delaware 001-31792 75-3108137
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
organization)
11825 North Pennsylvania Street
Carmel, Indiana 46032
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(Address of principal executive offices) (Zip Code)
(317) 817-6100
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name or former address,
if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On February 17, 2009, the Board of Directors of Conseco, Inc. (the
"Company") approved an amendment to the indemnification agreement among each
director of the Company, the Company, and its subsidiaries, CDOC, Inc. and
Conseco Services, LLC. Section 3 of the Indemnification Agreement was amended to
add the following sentence:
For the avoidance of doubt, Indemnitee's right to indemnification and
advancement of expenses provided under this indemnification agreement shall
(i) vest at the time that such Indemnitee became a director of the Company
and (ii) continue as to the Indemnitee even though he or she may have
ceased to be a director of the Company.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On February 17, 2009, the Company's Board of Directors approved amendments
to the Company's Amended and Restated Bylaws. The amendments made the following
substantive changes:
A. Article II, Section 11. Business Brought Before an Annual Meeting. The
changes provide for additional requirements for stockholders desiring to bring
business before an annual meeting. Such stockholders must now be a stockholder
who (a) was a stockholder of record at the time of the giving of notice provided
in the bylaw and at the time of the annual meeting, (b) is entitled to vote with
respect thereto and (c) complies with the notice procedures set forth in Section
11 of Article II of the Bylaws. Such stockholders must now disclose, among other
things, (i) the text of the proposal or business (including the text of any
resolutions proposed for consideration and, in the event that such business
includes a proposal to amend these Bylaws, the language of the proposed
amendment) and the reasons for conducting such business at the annual meeting,
(ii) a description of any agreement, arrangement or understanding with respect
to the nomination or proposal and/or the voting of shares of any class or series
of stock of the Company between or among the stockholder giving the notice, the
beneficial owner, if any, on whose behalf the proposal is made, any of their
respective affiliates or associates and/or others acting in concert with any of
the foregoing (collectively, "proponent persons"); (iii) a description of any
agreement, arrangement or understanding (including without limitation any
contract to purchase or sell, acquisition or grant of any option, right or
warrant to purchase or sell, swap or other instrument) the intent or effect of
which may be (x) to transfer to or from any proponent person, in whole or in
part, any of the economic consequences of ownership of any security of the
Company, (y) to increase or decrease the voting power of any proponent person
with respect to shares of any class or series of stock of the Company and/or (z)
to provide any proponent person, directly or indirectly, with the opportunity to
profit or share in any profit derived from, or
to otherwise benefit economically from, any increase or decrease in the value of
any security of the Company; (iv) a representation that the stockholder intends
to appear in person or by proxy at the meeting to propose such business or
nomination; and (v) a representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends (A) to deliver a
proxy statement and/or form of proxy to holders of at least a percentage of the
Company's outstanding capital stock required to approve or adopt the proposal to
elect the nominee and/or (B) otherwise to solicit proxies from stockholders in
support of such proposal or nomination. Notwithstanding the foregoing, a
stockholder shall also comply with all requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder with respect to the matters
set forth in Section 11 of Article II of the Bylaws, provided, however, that any
reference in the Bylaws to the Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any requirements
applicable to proposals as to any other business to be considered pursuant to
this Article II of the Bylaws.
B. Sections 2 and 3 of Article III of the Bylaws were amended to provide
for majority voting for uncontested director elections. The following changes
were made to Article III:
Section 2. Number, Election and Term of Office. The following sentence was
added: Except as provided in Section 4 of this Article, each director shall be
elected by the vote of the majority of the votes cast (where the number of votes
cast "for" a director exceeds the number of votes cast "against" that director)
with respect to the directors at any meeting for the election of directors at
which a quorum is present, provided that, if the number of nominees exceeds the
number of directors to be elected, the directors shall be elected by a plurality
of the shares represented in person or by proxy at any such meeting and entitled
to vote on the election of directors.
Section 3. Resignation. The following sentence was added: The Governance
and Strategy Committee has established procedures that govern the resignation
process for a director who has failed to be elected in accordance with the
requirements of Section 2. Such director shall offer to tender his or her
resignation to the Board of Directors, which will then act on the recommendation
of the Governance and Strategy Committee whether to accept or reject the
resignation. The Board of Directors will publicly disclose its decision and
rationale within 90 days from the date of the certification of the election
results.
C. Section 5. Nominations. of Article III of the Bylaws was amended to add,
among other things, the following requirements in connection with stockholders
wishing to nominate a person for election to the Board of Directors: (iv) a
description of any agreement, arrangement or understanding with respect to the
nomination or proposal and/or the voting of shares of any class or series of
stock of the Corporation between or among the stockholder giving the notice, the
beneficial owner, if any, on whose behalf the proposal is made, any of their
respective affiliates or associates and/or any proponent
persons; and (v) a description of any agreement, arrangement or understanding
(including without limitation any contract to purchase or sell, acquisition or
grant of any option, right or warrant to purchase or sell, swap or other
instrument) the intent or effect of which may be (x) to transfer to or from any
proponent person, in whole or in part, any of the economic consequences of
ownership of any security of the Corporation, (y) to increase or decrease the
voting power of any proponent person with respect to shares of any class or
series of stock of the Corporation and/or (z) to provide any proponent person,
directly or indirectly, with the opportunity to profit or share in any profit
derived from, or to otherwise benefit economically from, any increase or
decrease in the value of any security of the Corporation. A stockholder
providing notice of a proposed nomination for election to the Board or other
business proposed to be brought before a meeting (whether given pursuant to this
Section 11 or Section 5 of Article III) shall update and supplement such notice
from time to time to the extent necessary so that the information provided or
required to be provided in such notice shall be true and correct as of the
record date for the meeting and as of the date that is 15 days prior to the
meeting or any adjournment or postponement thereof, such update and supplement
shall be delivered in writing to the secretary at the principal executive
offices of the Corporation not later than 5 days after the record date for the
meeting (in the case of any update and supplement required to be made as of the
record date), and not later than 10 days prior to the date for the meeting or
any adjournment or postponement thereof (in the case of any update and
supplement required to be made as of 15 days prior to the meeting or any
adjournment or postponement thereof). The Corporation may require any proposed
nominee to furnish such other information as it may reasonably require to
determine the eligibility of such proposed nominee to serve as a director of the
Corporation.
D. Section 4 of Article V was amended to clarify the Company's obligations
relating to indemnification and the advancement of expenses. As amended, that
section reads as follows:
Section 4. Vesting of Indemnification and Advance of Expenses. The rights
to indemnification and to the advance of expenses conferred in Article IX of the
Certificate of Incorporation shall (i) vest at the time that such person became
a Director, officer or employee of the Corporation or a wholly owned subsidiary
of the Corporation or, while a Director, officer of employee of the Corporation
or a wholly owned subsidiary of the Corporation, became at the request of the
Corporation or a wholly owned subsidiary of the Corporation a Director, officer,
employee, partner, member, manager, trustee, fiduciary or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other entity or enterprise, including service with respect to an employee
benefit plan of the Corporation and (ii) continue as to such person even though
he or she may have ceased to be a Director, officer or employee of the
Corporation or a wholly owned subsidiary of the Corporation or a Director,
officer, employee, partner, member, manager, trustee, fiduciary or agent of
another corporation or of a partnership, joint venture, limited liability
company, trust or other entity or enterprise, including service with respect to
an employee benefit plan of the Corporation.
E. Article VI of the Bylaws was amended to provide for uncertificated
shares of stock.
Item 8.01. Other Events.
On February 17, 2009, the Company announced that its annual meeting of
shareholders will be held on May 12, 2009 at its offices in Carmel, Indiana,
beginning at 8:00 a.m. EDT. A copy of the press release is included as Exhibit
99.1 to this Current Report on Form 8-K.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
3.2 Amended and Restated Bylaws of Conseco, Inc. dated as of
February 17, 2009.
99.1 Press release of Conseco, Inc. dated February 17, 2009.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
CONSECO, INC.
February 22, 2009
By: /s/ John R. Kline
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John R. Kline
Senior Vice President and
Chief Accounting Officer