Document/Exhibit Description Pages Size
1: 10-K Conseco, Inc. 1993 Form 10-K 114 572K
4: EX-10.18.20 Exhibit 10.18.20 to Conseco, Inc. 1993 Form 10-K 9 50K
5: EX-10.18.21 Exhibit 10.18.21 to Conseco, Inc. 1993 Form 10-K 13 64K
6: EX-10.18.22 Exhibit 10.18.22 to Conseco, Inc. 1993 Form 10-K 13 59K
7: EX-10.18.23 Exhibit 10.18.23 to Conseco, Inc. 1993 Form 10-K 5 30K
8: EX-10.18.24 Exhibit 10.18.24 to Conseco, Inc. 1993 Form 10-K 7 29K
9: EX-10.18.25 Exhibit 10.18.25 to the Conseco, Inc. 1993 Form 9 50K
10-K
10: EX-10.23.1 Exhibit 10.23.1 to Conseco, Inc. 1993 Form 10-K 10 31K
11: EX-10.24.1 Exhibit 10.24.1 Conseco, Inc. 1993 Form 10-K 8 31K
12: EX-10.25 Exhibit 10.25 to Conseco, Inc. 1993 Form 10-K 18 89K
13: EX-10.32 Exhibit 10.32 to Conseco, Inc. 1993 Form 10-K 35 146K
14: EX-10.33.1 Exhibit 10.33.1 to Conseco, Inc. 1993 Form 10-K 30 162K
15: EX-10.33.2 Exhibit 10.33.2 to Conseco, Inc. 1993 Form 10-K 27 145K
16: EX-10.34 Exhibit 10-34 to Conseco, Inc. 1993 Form 10-K 18 84K
2: EX-10.8.5 Exhibit 10.8.5 to Conseco, Inc. 1993 Form 10-K 2± 10K
3: EX-10.8.6 Exhibit 10.8.6 to Conseco, Inc. 1993 Form 10-K 2± 12K
17: EX-11.1 Exhibit 11.1 to Conseco, Inc. 1993 Form 10-K 2± 12K
18: EX-11.2 Exhibit 11.2 to Conseco, Inc. 1993 Form 10-K 1 11K
19: EX-12.1 Exhibit 12.1 to Conseco, Inc. 1993 Form 10-K 2± 14K
20: EX-12.2 Exhibit 12.2 to Conseco, Inc. 1993 Form 10-K 2± 14K
21: EX-21 Exhibit 21 to Conseco, Inc. 1993 Form 10-K 1 9K
22: EX-23 Exhibit 23 to Conseco, Inc. 1993 Form 10-K 1 9K
EX-10.33.1 — Exhibit 10.33.1 to Conseco, Inc. 1993 Form 10-K
Exhibit Table of Contents
Western National Corporation
(a Delaware corporation)
27,497,500 Shares of Common Stock
(Par Value $.001 Per Share)
U.S. PURCHASE AGREEMENT
February 8, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
LADENBURG, THALMANN & CO. INC.
as U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
Dear Sirs:
Western National Corporation, a Delaware corporation
(the "Company"), Conseco Investment Holding Company, a Delaware
corporation ("CIHC"), and Conseco, Inc., an Indiana corporation
("Conseco"), confirm their agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch"), Dean Witter Reynolds Inc. ("Dean Witter"), Goldman,
Sachs & Co. ("Goldman Sachs"), Ladenburg, Thalmann & Co. Inc.
("Ladenburg") and each of the other underwriters named in
Schedule A hereto (collectively, the "U.S. Underwriters," which
term shall also includes any underwriter substituted as
hereinafter provided in Section 10), for whom Merrill Lynch, Dean
Witter, Goldman Sachs and Ladenburg are acting as representatives
(in such capacity, Merrill Lynch, Dean Witter, Goldman Sachs and
Ladenburg shall hereinafter be referred to as the "U.S.
Representatives"), with respect to the sale by the Company and
CIHC, acting severally and not jointly, and the purchase by the
U.S. Underwriters, acting severally and not jointly, of 1,700,000
shares and 25,797,500 shares, respectively, of the respective
number of shares of Common Stock of the Company, $.001 par value
per share (the "Common Stock"), set forth in Schedule A and with
respect to the grant by the Company and CIHC to the U.S.
Underwriters and Managers (as defined below), acting severally
and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of additional shares of Common Stock
to cover over-allotments. The aforesaid shares of Common Stock
(the "Initial U.S. Securities") to be purchased by the U.S.
Underwriters and all or any part of the shares of Common Stock
subject to the over-allotment option described in Section 2(b)
hereof (the "U.S. Option Securities") are collectively referred
to herein as the "U.S. Securities." The 4,852,500 shares of
Common Stock subject to the option described in Section 2(b)
hereof are hereinafter collectively called the "Option
Securities."
It is understood that the Company, CIHC and Conseco are
concurrently entering into an agreement dated the date hereof
(the "International Purchase Agreement") with certain Managers
outside the United States and Canada (the "Managers") for which
Merrill Lynch International Limited, Dean Witter International
Ltd., Goldman Sachs International Limited and Ladenburg are
acting as lead managers (the "Lead Managers"), providing for the
offering by the Company and CIHC of 4,852,500 shares of Common
Stock (the "Initial International Securities") and the grant by
the Company and CIHC to the Managers of an option to purchase all
or any part of the Managers' pro rata portion of the Option
Securities (the "International Option Securities") to cover over-
allotments. The Initial International Securities and the
International Option Securities are hereinafter called the
"International Securities." It is understood that the Company
and CIHC are not obligated to sell, and the U.S. Underwriters are
not obligated to purchase, any Initial U.S. Securities unless all
of the Initial International Securities are contemporaneously
purchased by the Managers.
The U.S. Underwriters and the Managers are hereinafter
collectively called the "Underwriters," the Initial U.S.
Securities and the Initial International Securities are
hereinafter collectively called the "Initial Securities," and
U.S. Securities and the International Securities are hereinafter
collectively called the "Securities."
The Company, CIHC, Conseco and the Managers understand
that the Underwriters will concurrently enter into an
Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of
certain transactions among the Underwriters under the direction
of Merrill Lynch.
Prior to the purchase and public offering of the U.S.
Securities by the several U.S. Underwriters, the Company, CIHC,
Conseco and the U.S. Representatives, acting on behalf of the
several U.S. Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "U.S. Pricing
Agreement"). The U.S. Pricing Agreement may take the form of an
exchange of any standard form of written telecommunication
between the Company, CIHC, Conseco and the U.S. Representatives
and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the U.S. Securities will be
governed by this Agreement, as supplemented by the U.S. Pricing
Agreement. From and after the date of the execution and delivery
of the U.S. Pricing Agreement, this Agreement shall be deemed to
incorporate the U.S. Pricing Agreement.
The initial public offering price and the purchase
price with respect to the International Securities shall be set
forth in a separate instrument (the "International Pricing
Agreement"), the form of which is attached to the International
Purchase Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-1 (No. 33-70022) and a related preliminary prospectus for
the registration of the Securities under the Securities Act of
1933, as amended (the "1933 Act"), has filed such amendments
thereto, if any, and such amended preliminary prospectuses as may
have been required to the date hereof, and will file such
additional amendments thereto and such amended prospectuses as
may hereafter be required. (1) Such registration statement (as
amended, if applicable) and the two prospectuses constituting a
part thereof (including in each case the information, if any,
deemed to be a part thereof pursuant to Rule 430A(b) under the
rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations")), as from time to time thereafter may be
amended or supplemented pursuant to the 1933 Act or otherwise,
are hereinafter referred to as the "Registration Statement," the
"U.S. Prospectus," and the "International Prospectus"
respectively, and the U.S. and International Prospectuses are
hereinafter together called "Prospectuses" and, each
individually, a "Prospectus," respectively, except that if any
[FN]
(1) Two forms of prospectuses are to be used in connection with the offering
and sale of the Securities: one relating to the U.S. Securities (the "U.S.
Prospectus"), and one relating to the International Securities (the
"International Prospectus").
revised prospectus shall be provided to the U.S. Underwriters or
the Managers by the Company for use in connection with the
offering of the Securities which differs from the Prospectuses on
file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) under
the 1933 Act Regulations), the terms "U.S. Prospectus" and
"International Prospectus" shall refer to each such revised
prospectus from and after the time it is first provided to the
U.S. Underwriters or the Managers, as the case may be, for such
use.
The Company, CIHC and Conseco understand that the U.S.
Underwriters propose to make a public offering of the U.S.
Securities as soon as the U.S. Representatives deem advisable
after the Registration Statement becomes effective and the U.S.
Pricing Agreement has been executed and delivered. The price per
share for the International Securities to be purchased by the
Managers pursuant to the International Purchase Agreement shall
be identical to the price per share for the U.S. Securities to be
purchased by the U.S. Underwriters hereunder.
SECTION 1. Representations and Warranties.
(a) The Company, CIHC and Conseco represent and
warrant to each U.S. Underwriter as of the date hereof and as of
the date of the U.S. Pricing Agreement (such latter date being
hereinafter referred to as the "U.S. Representation Date") as
follows:
(i) At the time the Registration Statement
becomes effective and at the U.S. Representation Date,
the Registration Statement will comply in all material
respects with the requirements of the 1933 Act and the
1933 Act Regulations and will not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; and the Prospectuses, at the time the
Registration Statement becomes effective (unless the
term "Prospectuses" refers to prospectuses which have
been provided to the U.S. Underwriters and the Managers
by the Company for use in connection with the offering
of the Securities which differ from the Prospectuses on
file at the Commission at the time the Registration
Statement becomes effective, in which case at the time
such Prospectuses are first provided to the U.S.
Underwriters and the Managers for such use) and at the
U.S. Representation Date and at the Closing Time
referred to in Section 2, will not include an untrue
statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the representations and warranties in this subsection
shall not apply to statements in or omissions from the
Registration Statement or Prospectuses made in reliance
upon and in conformity with information furnished to
the Company in writing by any U.S. Underwriter through
Merrill Lynch expressly for use in the Registration
Statement or the Prospectuses.
(ii) Coopers & Lybrand, the accountants who
certified the financial statements and supporting
schedules of the Company and Western National Life
Insurance Company, a Texas insurance company
("Western"), included in the Registration Statement,
are independent public accountants with respect to the
Company and its subsidiaries as required by the 1933
Act and the 1933 Act Regulations.
(iii) The financial statements of the Company and
Western included in the Registration Statement and the
Prospectuses present fairly the financial position of
the Company and Western as of the dates indicated and
the results of its operations for the periods
specified; except as otherwise stated in the
Registration Statement, said financial statements have
been prepared in conformity with generally accepted
accounting principles applied on a consistent basis;
and the supporting schedules included in the
Registration Statement present fairly the information
required to be included therein; and the Company's
ratios of earnings to fixed charges (actual and pro
forma) included in the Prospectuses and in Exhibit 12.1
to the Registration Statement have been calculated in
compliance, in all material respects, with Item 503(d)
of Regulation S-K of the Commission.
(iv) The statutory financial statements of
Western, from which certain ratios and other
statistical data contained in the Registration
Statement have been derived, have for each relevant
period been prepared in accordance with accounting
practices prescribed or permitted by the National
Association of Insurance Commissioners and the
insurance department of the state of Texas, and such
accounting practices have been applied on a consistent
basis throughout the periods involved, except as
disclosed therein.
(v) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectuses, and except as otherwise stated or
contemplated therein, (A) there has been no material
adverse change and no development which will result in
a prospective material adverse change in the condition,
financial or otherwise, or in the earnings or business
affairs of the Company and its subsidiaries, considered
as one enterprise, whether or not arising in the
ordinary course of business, (B) there have been no
transactions entered into by the Company or any of its
subsidiaries which are material to the Company and its
subsidiaries, considered as one enterprise, other than
those entered into in the ordinary course of business,
and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate
power and authority to own, lease and operate its
properties and to conduct its business as presently
conducted and as described in the Prospectuses; and the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except to the
extent the failures to so qualify or be in good
standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings
or business affairs of the Company and its
subsidiaries, considered as one enterprise.
(vii) Each of the Company's subsidiaries has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its
properties and to conduct its business as presently
conducted and as described in the Prospectuses; and is
duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction
in which such qualification is required, whether by
reason of the ownership or leasing of property or the
conduct of business, except where the failures to so
qualify or be in good standing would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one
enterprise; and the outstanding shares of capital stock
of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and
nonassessable and all such shares are owned by the
Company or, in the case of Western, by WNL Holding
Corp., a Delaware corporation ("WNL"); and at the
Closing Time (as defined herein), WNL, Western and
Conseco Annuity Guarantee Company, a Texas corporation
("CAGC"), will be the only subsidiaries of the Company.
(viii) The Company and each of its subsidiaries
hold all material licenses, certificates and permits
from governmental authorities (including, without
limitation, insurance licenses from the insurance
departments of the various states where the
subsidiaries write insurance business (the "Insurance
Licenses")) which are necessary to the conduct of their
businesses; the Company and its subsidiaries have
fulfilled and performed all material obligations
necessary to maintain their respective Insurance
Licenses, and no event or events have occurred which
may be reasonably expected to result in the impairment,
modification, termination or revocation of such
Insurance Licenses.
(ix) The authorized, issued and outstanding
capitalization of the Company is as set forth in the
Prospectuses under "Capitalization"; all of the issued
and outstanding shares of the Common Stock (including
the Securities being sold by CIHC) have been duly
authorized and validly issued and are fully paid and
nonassessable; the Securities to be sold by the Company
have been duly authorized and, when delivered by the
Company to the U.S. Underwriters pursuant to this
Agreement and to the Managers pursuant to the
International Purchase Agreement against payment of the
consideration set forth in the U.S. Pricing Agreement
and the International Pricing Agreement, will be
validly issued and fully paid and nonassessable; the
issuance of the Securities is not subject to preemptive
or other similar rights, and the Common Stock at the
time the Registration Statement becomes effective will
be registered under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and will be
authorized for listing on the New York Stock Exchange,
Inc. (the "NYSE"), upon official notice of issuance.
(x) Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any
obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any
of the property or assets of the Company or any of its
subsidiaries is subject, or in violation of any
applicable law, administrative regulation or
administrative or court order or decree, which
violation or default would, singly or in the aggregate,
have a material adverse effect on the condition,
financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered
as one enterprise; and the execution, delivery and
performance of this Agreement, the U.S. Pricing
Agreement, the International Purchase Agreement and the
International Pricing Agreement and the consummation of
the transactions contemplated herein and therein and
compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by
all necessary corporate action and will not conflict
with or constitute a breach of, or a default under, or
result in the creation or imposition of any pledge,
lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the
property or assets of the Company or any of its
subsidiaries is subject, except for any conflict,
breach, default, pledge, lien, charge or encumbrance
which would not, singly and in the aggregate, have a
material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the
Company and its subsidiaries considered as one
enterprise, nor will such action result in any
violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any
applicable law, administrative regulation or
administrative or court decree.
(xi) There is no action, suit or proceeding
before or by any court or governmental agency or body,
domestic or foreign (including, without limitation, any
proceeding to revoke or deny renewal of any Insurance
Licenses), now pending, or, to the best knowledge of
the Company, CIHC or Conseco, threatened, against or
affecting the Company or any of its subsidiaries which
is required to be disclosed in the Registration
Statement or the Prospectuses, or which is reasonably
likely to result in any material adverse change in the
condition, financial or otherwise, or in the earnings
or business affairs of the Company and its
subsidiaries, considered as one enterprise, or which
would be reasonably likely to materially and adversely
affect a material portion of the properties or assets
thereof or which is reasonably likely to materially and
adversely affect the consummation of the transactions
contemplated by this Agreement, the U.S. Pricing
Agreement, the International Purchase Agreement and the
International Pricing Agreement; all pending legal or
governmental proceedings to which the Company or any of
its subsidiaries is a party or of which any of their
respective property or assets is the subject which are
not described in the Registration Statement or the
Prospectuses, including ordinary routine litigation
incidental to the business of the Company or any of its
subsidiaries, are, considered in the aggregate, not
material; and there are no contracts or documents of
the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration
Statement by the 1933 Act or the 1933 Act Regulations
which have not been so filed.
(xii) No authorization, approval or consent of
any court or governmental authority or agency is
necessary in connection with the issuance and sale of
the Securities hereunder, or the consummation by the
Company, CIHC and Conseco of any other transactions
contemplated hereby, except such as have been obtained
and made under the federal securities laws or state
insurance laws and such as may be required under state
or foreign securities laws.
(xiii) The Securities conform in all material
respects to the respective statements relating thereto
contained in the Prospectuses and the Registration
Statement.
(xiv) Except as provided in the Stockholder
Agreement among the Company, CIHC and Conseco, there
are no holders of securities of the Company or any of
its subsidiaries with registration rights to have any
securities registered as part of the Registration
Statement or included in the offering contemplated by
this Agreement or the International Purchase Agreement.
(xv) This Agreement and the International
Purchase Agreement have been, and at the U.S.
Representation Date and the International
Representation Date, the U.S. Pricing Agreement and the
International Pricing Agreement, respectively, will
have been, duly authorized, executed and delivered by
the Company, CIHC and Conseco and constitute the valid,
legal and binding obligations of the Company, CIHC and
Conseco enforceable against them in accordance with
their terms (except (1) as may be limited by
bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting creditors'
rights generally and except that the remedies of
specific performance and injunctive and other forms of
equitable relief are subject to certain equitable
defenses and to the discretion of the court before
which any proceeding therefor may be brought, and (2)
that no representation or warranty is given as to the
enforceability of the indemnity and contribution
provisions hereunder or thereunder).
(xvi) The execution and delivery of this
Agreement, the U.S. Pricing Agreement, the
International Purchase Agreement and the
International Pricing Agreement, and the
consummation of the transactions herein and
therein contemplated, will not result in a breach
by CIHC or Conseco of, or constitute a default by
CIHC or Conseco under, their respective charters
or by-laws or any material indenture, deed of
trust, contract, or other material agreement or
instrument or any decree, judgment or order to
which CIHC or Conseco is a party or by which CIHC
or Conseco may be bound.
(xvii) CIHC has and will have at the Closing
Time referred to in Section 2(c) good and
marketable title to the Securities to be sold by
CIHC hereunder, free and clear of any pledge,
lien, security interest, encumbrance, claim or
equity, other than pursuant to this Agreement and
the International Purchase Agreement; CIHC has
full right, power and authority to sell, transfer
and deliver the Securities to be sold by CIHC
hereunder and under the International Purchase
Agreement; and upon delivery of the Securities to
be sold by CIHC hereunder and under the
International Purchase Agreement and payment of
the purchase price therefor as herein and therein
contemplated, each of the Underwriters will
receive good and marketable title to its ratable
share of the Securities purchased by it from CIHC,
free and clear of any pledge, lien, security
interest, encumbrance, claim or equity, except for
those created by or through the Underwriters.
(xviii) All authorizations, approvals and
consents necessary for the execution and delivery
by CIHC and Conseco of this Agreement, the U.S.
Pricing Agreement, the International Purchase
Agreement and the International Pricing Agreement
and the sale and delivery of the Securities to be
sold by CIHC (other than, at the time of the
execution hereof, the issuance of the order of the
Commission declaring the Registration Statement
effective and such authorizations, approvals or
consents as may be necessary under state or
foreign securities laws) have been obtained and
are in full force and effect; and CIHC and Conseco
has the full right, power and authority to enter
into this Agreement, the U.S. Pricing Agreement,
the International Purchase Agreement and the
International Pricing Agreement and to sell,
transfer and deliver the Securities to be sold by
CIHC hereunder and thereunder.
(xix) None of the Company, CIHC or Conseco
has taken, or will take, directly or indirectly,
any action which is designed to or which has
constituted or which might reasonably be expected
to cause or result in stabilization or
manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Securities.
(xx) Except as noted by the Company, CIHC
and Conseco in a letter previously delivered by
them to the Underwriters, none of the Company,
CIHC, Conseco or any of their respective
subsidiaries are affiliated with or a person
associated with a member of the National
Association of Securities Dealers, Inc. (the
"NASD").
(b) Any certificate signed by any officer of the
Company, CIHC or Conseco and delivered to the U.S.
Representatives or to counsel for the U.S. Underwriters shall be
deemed a representation and warranty by the Company, CIHC or
Conseco, as the case may be, to each U.S. Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters;
Closing.
(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein
set forth, the Company and CIHC, severally and not jointly, agree
to sell to each U.S. Underwriter, severally and not jointly, and
each U.S. Underwriter agrees, severally and not jointly, to
purchase from the Company and CIHC, at the price per share set
forth in the U.S. Pricing Agreement, that portion of the
1,700,000 shares and 25,797,500 shares being sold by the Company
and CIHC, respectively, which the number of Initial U.S.
Securities set forth in Schedule A opposite the name of such U.S.
Underwriter (except as otherwise provided in the U.S. Pricing
Agreement), plus any additional number of Initial U.S. Securities
which such U.S. Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, bears to the
total number of Initial U.S. Securities (except as otherwise
provided in the U.S. Pricing Agreement), subject, in each case,
to such adjustments as the U.S. Underwriters in their discretion
shall make to eliminate any sales or purchases of fractional
shares.
(1) If the Company has elected not to rely upon Rule
430A under the 1933 Act Regulations, the initial public
offering price per Security, and the purchase price per
Security to be paid by the several U.S. Underwriters for the
Securities (collectively, the "U.S. Pricing Terms") have
each been determined and set forth in the U.S. Pricing
Agreement, dated the date hereof, and an amendment to the
Registration Statement and the Prospectuses will be filed
before the Registration Statement becomes effective.
(2) If the Company has elected to rely upon Rule 430A
under the 1933 Act Regulations, the purchase price per
Security to be paid by the several U.S. Underwriters shall
be an amount equal to the initial public offering price per
Security, less an amount per Security to be determined by
agreement among the U.S. Representatives, the Company, CIHC
and Conseco. The U.S. Pricing Terms likewise shall be
determined by agreement among the U.S. Representatives, the
Company, CIHC and Conseco. The U.S. Pricing Terms, when so
determined, shall be set forth in the U.S. Pricing
Agreement. In the event that such U.S. Pricing Terms have
not been agreed upon and the U.S. Pricing Agreement has not
been executed and delivered by the parties thereto by the
close of business on the fourth business day following the
date of this Agreement, this Agreement shall terminate
forthwith, without liability of any party to any other
party, unless otherwise agreed to by the Company, CIHC,
Conseco and the U.S. Representatives.
(b) In addition, on the basis of the representations
and warranties herein contained and subject to the terms and
conditions herein set forth, the Company and CIHC hereby grant an
option to the U.S. Underwriters, severally and not jointly, to
purchase from them up to an additional 255,000 shares and
3,869,625 shares, respectively, of Common Stock at the price per
share set forth in the U.S. Pricing Agreement. The option hereby
granted will expire automatically at the close of business on the
30th calendar day after (i) the date the Registration Statement
becomes effective, if the Company has elected not to rely upon
Rule 430A under the 1933 Act Regulations, or (ii) the U.S.
Representation Date, if the Company has elected to rely upon Rule
430A under the 1933 Act Regulations, and may be exercised in
whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice
by the U.S. Representatives to the Company, CIHC and Conseco
setting forth the number of U.S. Option Securities as to which
the several U.S. Underwriters are then exercising the option and
the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the U.S. Representatives but
shall not be later than seven full business days after the
exercise of such option, nor in any event before the Closing
Time, as hereinafter defined, unless otherwise agreed upon by the
U.S. Representatives, the Company, CIHC and Conseco. If the
option is exercised as to all or any portion of the U.S. Option
Securities, each of the U.S. Underwriters, acting severally and
not jointly, will purchase that portion of the number of U.S.
Option Securities subject to the option set forth in this Section
2(b) of the Company or CIHC, as the case may be, which the number
of Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter bears to the total number of
Initial U.S. Securities (except as otherwise provided in the U.S.
Pricing Agreement), subject in each case to such adjustments as
the U.S. Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Delivery of certificates for the Initial U.S.
Securities shall be made at the offices of Merrill Lynch in New
York, New York and payment of the purchase price for the Initial
U.S. Securities shall be made at the offices of Merrill Lynch in
Chicago, Illinois, or in each case at such other place as shall
be agreed upon by the U.S. Representatives, the Company, CIHC and
Conseco, at 10:00 a.m. (New York City time) on the fifth business
day after the date the Registration Statement becomes effective
(or, if the Company has elected to rely upon Rule 430A, the fifth
business day after execution of the U.S. Pricing Agreement), or
such other time not later than ten business days after such date
as shall be agreed upon by the U.S. Representatives, the Company,
CIHC and Conseco (such time and date of payment and delivery
being herein called the "Closing Time"). In addition, if the
U.S. Underwriters purchase any or all of the U.S. Option
Securities, payment of the purchase price, and delivery of
certificates for such U.S. Option Securities shall be made at the
offices set forth above, or at such other place as shall be
agreed upon by the U.S. Representatives, the Company, CIHC and
Conseco, on each Date of Delivery as specified in the relevant
notice from the U.S. Representatives to the Company, CIHC and
Conseco. Payment for the Securities purchased by the U.S.
Underwriters shall be made to the Company and CIHC by certified
or official bank check or checks, drawn in Chicago Clearing House
funds or similar next day funds, payable to the order of the
Company or CIHC, as the case may be, against delivery to the U.S.
Representatives for the respective accounts of the U.S.
Underwriters of certificates for the Securities to be purchased
by them. Certificates for the Initial U.S. Securities and the
U.S. Option Securities shall be in such denominations and
registered in such names as the U.S. Representatives may request
in writing at least two full business days before the Closing
Time or any Date of Delivery, as the case may be. It is
understood that each U.S. Underwriter has authorized the U.S.
Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial U.S.
Securities and the U.S. Option Securities, if any, which it has
agreed to purchase. Merrill Lynch, individually and not as
representative of the U.S. Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Initial
U.S. Securities or the U.S. Option Securities, if any, to be
purchased by any U.S. Underwriter whose check has not been
received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S.
Underwriter from its obligations hereunder. The certificates for
the Initial U.S. Securities and the U.S. Option Securities, if
any, will be made available for examination and packaging by the
U.S. Representatives not later than 10:00 a.m. (New York City
time) on the last business day prior to the Closing Time or the
Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company, CIHC and Conseco.
The Company covenants, and with respect to
Sections 3(l) and 3(o) below, each of the Company, CIHC and
Conseco covenants, with each U.S. Underwriter as follows:
(a) The Company will notify the U.S. Representatives
immediately and confirm the notice in writing (i) of the
effectiveness of the Registration Statement and any amendment
thereto (including any post-effective amendment) and, if Rule
430A under the 1933 Act Regulations is being relied upon, of the
filing of the amended Prospectuses pursuant to Rule 430A, (ii) of
the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectuses or
for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose and (v) of the issuance by any state securities
commission or other regulatory authority of any order suspending
the qualification or the exemption from qualification of the
Securities under state securities or Blue Sky laws or the
initiation of any proceedings for that purpose. The Company will
use its best efforts to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) The Company will give the U.S. Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment)
or any amendment or supplement to the Prospectuses (including any
revised prospectus which the Company proposes for use by the U.S.
Underwriters in connection with the offering of the Securities
which differs from the prospectuses on file at the Commission at
the time the Registration Statement becomes effective, whether or
not such revised prospectuses are required to be filed pursuant
to Rule 424(b) under the 1933 Act Regulations), will furnish the
U.S. Representatives with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the
U.S. Representatives or counsel for the U.S. Underwriters shall
reasonably object.
(c) The Company will deliver to the U.S.
Representatives five signed copies of the Registration Statement
as originally filed and of each amendment thereto (including
exhibits filed therewith) and will also deliver to the U.S.
Representatives as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto
(without exhibits) as the U.S. Representatives may request.
(d) The Company will furnish to each U.S. Underwriter,
from time to time during the period when the Prospectuses are
required to be delivered under the 1933 Act such number of copies
of the Prospectuses (as amended or supplemented) as such U.S.
Underwriter may request for the purposes contemplated by the 1933
Act or the applicable 1933 Act Regulations.
(e) If any event shall occur as a result of which it
is necessary, in the reasonable opinion of counsel for the U.S.
Underwriters, to amend or supplement the Prospectuses in order to
make the U.S. Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the
U.S. Prospectus (in form and substance reasonably satisfactory to
counsel for the U.S. Underwriters) so that, as so amended or
supplemented, the U.S. Prospectus will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Company will furnish to the
U.S. Underwriters as many copies of such amendment or supplement
as the U.S. Underwriters may request.
(f) The Company will endeavor, in cooperation with the
U.S. Underwriters and their counsel, to qualify the Securities
for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the
U.S. Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified
or to execute a general consent as to service of process in any
jurisdiction in which it is not so subject to such service. In
each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required in
connection with the distribution of the Securities.
(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not
later than 45 days after the close of the period covered thereby,
an earnings statement (in form and in a manner complying with the
provisions of Rule 158 under the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds."
(i) If, at the time that the Registration Statement
becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A under the 1933 Act
Regulations, then promptly following the execution of the U.S.
Pricing Agreement, the Company will prepare, and file or transmit
for filing with the Commission in accordance with such Rule 430A
and Rule 424(b) under the 1933 Act Regulations, copies of amended
Prospectuses, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including amended
Prospectuses), containing all information so omitted.
(j) The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act,
will promptly file all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1934 Act, of which the U.S. Representatives shall have previously
been advised and previously furnished a copy, and with respect to
which the Company shall endeavor in good faith to provide the
U.S. Representatives or the U.S. Underwriters' counsel with an
opportunity to comment.
(k) For a period of one year after the Closing Time,
the Company will furnish to the U.S. Representatives copies of
all reports and communications delivered to the Company's
stockholders or to holders of the Securities as a class and will
also furnish copies of all reports (excluding exhibits) filed
with the Commission on Forms 8-K, 10-Q and 10-K, and all other
reports and information furnished to its stockholders generally,
not later than the time such reports are first furnished to such
holders generally.
(l) During a period commencing on the date hereof and
ending 180 days, in the case of the Company, and 365 days, in the
case of CIHC and Conseco, from the date of the Prospectuses, each
of the Company, CIHC and Conseco will not, without the prior
written consent of the U.S. Representatives, directly or
indirectly, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, or enter into any agreement to sell,
any Common Stock or any securities similar to the Securities or
any security convertible into or exchangeable or exercisable for
any Common Stock or any such similar securities or file with the
Commission a registration statement under the 1933 Act to
register any Common Stock of the Company or any securities
convertible into or exercisable for Common Stock of the Company;
provided, however, that such restriction shall not affect (i) the
ability of the Company to take any such action in connection with
any employee benefit or incentive plan of the Company or its
subsidiaries described in the Prospectuses, (ii) the ability of
CIHC to sell 150,000 shares of Common Stock of the Company to Mr.
Michael J. Poulos pursuant to the Employment Agreement dated
September 9, 1993 between Conseco and Mr. Poulos or (iii) the
ability of the Company or CIHC to take any action in connection
with the offering of the Securities made pursuant to the
Prospectuses.
(m) The Company will use its best efforts to effect
and maintain the listing of the Securities and all other shares
of Common Stock outstanding from time to time on the NYSE and to
cause the Common Stock to be registered under the 1934 Act.
(n) The Company and CIHC will indemnify and hold
harmless the U.S. Underwriters against any documentary, stamp or
similar issue tax, including any interest and penalties, on the
creation, issue and sale of the Securities and on the execution
of this Agreement.
(o) No later than the next business day following the
Closing Time, Conseco shall repay in full all indebtedness under
the Credit Agreement dated as of September 30, 1993 among
Conseco, the lenders named therein, First Union National Bank of
North Carolina, Citicorp USA, Inc. and Continental Bank, N.A., as
Agents, and Continental Bank, N.A., as Administrative Agent.
SECTION 4. Payment of Expenses.
The Company will pay all expenses incident to the
performance of the obligations of the Company, CIHC and Conseco
under this Agreement, the U.S. Pricing Agreement, the
International Purchase Agreement and the International Pricing
Agreement including, without limitation, expenses related to the
following, if incurred: (i) the preparation, delivery, printing
and filing of the Registration Statement and Prospectuses as
originally filed and of each amendment thereto; (ii) the printing
of this Agreement, the U.S. Pricing Agreement, the International
Purchase Agreement and the International Pricing Agreement; (iii)
the preparation, issuance and delivery of the certificates for
the Securities to the U.S. Underwriters and Managers; (iv) the
fees and disbursements of the Company's counsel and accountants;
(v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f), including filing
fees and the fees and disbursements of counsel for the U.S.
Underwriters and Managers in connection therewith and in
connection with the preparation of the Blue Sky Survey; (vi) the
printing and delivery to the U.S. Underwriters and Managers of
copies of the Registration Statement as originally filed and of
each amendment thereto, of the preliminary prospectuses, and of
the Prospectuses and any amendments or supplements thereto; (vii)
the printing and delivery to the U.S. Underwriters and Managers
of copies of the Blue Sky Survey; (viii) any fees payable to the
NASD; (ix) any fees payable to the Commission; and (x) the fees
and expenses incurred in connection with the listing on the NYSE
of the Securities.
If this Agreement is terminated by the U.S.
Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i), the Company, CIHC and Conseco shall reimburse
the U.S. Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of counsel for the U.S.
Underwriters.
SECTION 5. Conditions of U.S. Underwriters'
Obligations.
The obligations of the U.S. Underwriters hereunder are
subject to the accuracy of the representations and warranties of
the Company, CIHC and Conseco herein contained, to the
performance by the Company, CIHC and Conseco of their obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 p.m., New York City time, on the
date hereof or, with the consent of Merrill Lynch, at a later
time and date, not later, however, than 5:30 p.m. on the first
business day after the date hereof, or at such later time and
date as may be agreed upon by the U.S. Representatives, the
Company, CIHC and Conseco, and at the Closing Time and any Date
of Delivery no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the
Commission. If the Company has elected to rely upon Rule 430A
under the 1933 Act Regulations, the U.S. Pricing Terms and any
other price-related information previously omitted from the
effective Registration Statement to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule
424(b) under the 1933 Act Regulations within the prescribed time
period, and prior to the Closing Time, the Company shall have
provided evidence satisfactory to the U.S. Representatives of
such timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared effective
in accordance with the requirements of Rule 430A under the 1933
Act Regulations.
(b) At the Closing Time the U.S. Representatives shall
have received:
(1) The favorable opinion, dated as of the
Closing Time, of Lawrence W. Inlow, Secretary and
General Counsel to the Company, CIHC and Conseco, in
form and substance satisfactory to counsel for the U.S.
Underwriters and Managers, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Delaware;
the Company has the corporate power under the laws
of the State of Delaware and under its charter to
own, lease and operate its properties and to
conduct its business as described in the
Registration Statement and the Prospectuses; and
the Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, whether by reason of
the ownership or leasing of property or the
conduct of business, except where the failures to
so qualify or be in good standing would not have a
material adverse effect on the condition,
financial or otherwise, or the earnings or
business affairs or prospects of the Company and
its subsidiaries, considered as one enterprise.
(ii) The Securities delivered at the Closing
Time and all other outstanding shares of the
Common Stock of the Company have been duly
authorized and validly issued, are fully paid and
nonassessable and conform in all material respects
to the description thereof contained in the
Prospectuses; the Common Stock is registered under
the 1934 Act and the Securities at the Closing
Time have been authorized for listing on the NYSE,
upon official notice of issuance.
(iii) The issuance of the Securities is not
subject to preemptive or other similar rights
arising by law.
(iv) The U.S. Purchase Agreement, the U.S.
Pricing Agreement, the International Purchase
Agreement and the International Pricing Agreement
have been duly authorized, executed and delivered
by the Company, CIHC and Conseco and constitute
valid and binding obligations of the Company, CIHC
and Conseco enforceable in accordance with their
terms (except (1) as may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization
or similar laws affecting creditors' rights
generally and except that the remedies of specific
performance and injunctive and other forms of
equitable relief are subject to certain equitable
defenses and to the discretion of the court before
which any proceeding therefor may be brought, and
(2) that no opinion need be given as to the
enforceability of the indemnity and contribution
provisions hereunder or thereunder).
(v) The Common Stock conforms in all
material respects to the description thereof
contained in the Prospectuses and the Registration
Statement; and the forms of certificates used to
evidence the Securities and the Common Stock
comply with all applicable statutory and NYSE
requirements.
(vi) Each subsidiary of the Company has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation and has the
corporate power and authority to own, lease and
operate its properties and to conduct its business
as presently conducted and as described in the
Registration Statement and the Prospectuses.
Nothing has come to the attention of such counsel
to lead such counsel to believe that any
subsidiary is not duly qualified as a foreign
corporation to transact business or is not in good
standing in each jurisdiction in which such
qualification is required, except where the
failures to so qualify or be in good standing
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings
or business affairs of the Company and its
subsidiaries considered as one enterprise. All of
the issued and outstanding capital stock of each
subsidiary of the Company have been duly
authorized and validly issued, are fully paid and
nonassessable, and all such shares are owned by
the Company or, in the case of Western, by WNL,
and WNL, Western and CAGC are the only
subsidiaries of the Company.
(vii) The Registration Statement is
effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or
proceedings therefor initiated, or to such
counsel's best knowledge, threatened by the
Commission.
(viii) At the time the Registration
Statement became effective and at the U.S.
Representation Date and the Closing Time, the
Registration Statement (other than the financial
statements and schedules or other financial
information or statistical data included therein,
as to which no opinion need be rendered) complied
as to form in all material respects to the
requirements of the 1933 Act and the 1933 Act
Regulations.
(ix) No authorization, approval or consent
of any court or governmental authority or agency
is necessary in connection with the issuance and
sale of the Securities hereunder or the
consummation by the Company, CIHC and Conseco of
any other transactions contemplated hereby, except
such as have been obtained and made under the
federal securities laws or state insurance laws
and such as may be required under the state or
foreign securities laws.
(x) To the best knowledge of such counsel,
there are no statutes or regulations required to
be described in the Registration Statement which
are not described as required and there are no
legal or governmental proceedings pending or
threatened which are required to be disclosed in
the Registration Statement, other than those
disclosed therein.
(xi) To the best knowledge of such counsel,
there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other
instruments required to be described or referred
to in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed as exhibits thereto;
the descriptions thereof or references thereto are
true and correct in all material respects and no
default exists in the due performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease
or other instrument so described, referred to or
filed, which default could have a material adverse
effect on the Company and its subsidiaries
considered as one enterprise.
(xii) The issuance and delivery of the
Securities, the execution and delivery of the U.S.
Purchase Agreement, the International Purchase
Agreement, the U.S. Pricing Agreement and the
International Purchase Agreement and the
consummation of the transactions contemplated
therein and compliance by the Company with its
obligations thereunder will not conflict with or
constitute a breach of, or default under, or
result in the creation or imposition of any
pledge, lien, charge or encumbrance upon any
property or assets of the Company or any of its
subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the
property or assets of the Company or any of its
subsidiaries is subject, except for any conflict,
breach, default, lien, charge or encumbrance which
would not, singly and in the aggregate, have a
material adverse effect on the condition,
financial or otherwise, or the earnings or
business affairs of the Company and its
subsidiaries considered as one enterprise nor will
such action result in any violation of the
provisions of the charter or by-laws of the
Company, or any material applicable law,
administrative regulation or administrative or
court decree.
(xiii) The Company and each of its
subsidiaries hold all material licenses,
certificates and permits from all governmental
authorities (including, without limitation, the
Insurance Licenses) which are necessary to the
conduct of their businesses; the Company and each
of its subsidiaries have fulfilled and performed
all material obligations necessary to maintain
their respective Insurance Licenses, and no event
or events have occurred which may be reasonably
expected to result in the material impairment,
modification, termination or revocation of such
Insurance Licenses.
(xiv) CIHC has full legal right, power and
authorization, and any approval required by law,
to sell, assign, transfer and deliver good and
marketable title to the Securities which CIHC has
agreed to sell pursuant to the U.S. Purchase
Agreement and the International Purchase
Agreement.
(xv) No authorization, approval, consent, or
order of any court or governmental authority or
agency is required in connection with the sale of
the Securities by CIHC to the Underwriters, except
such as may be required under the 1933 Act or the
1933 Act Regulations or state or foreign
securities laws or state insurance laws.
(xvi) When the Securities are delivered to
the Underwriters against payment therefor in
accordance with the terms of the U.S. Purchase
Agreement and the International Purchase
Agreement, each of the Underwriters will acquire
good and marketable title to the Securities
purchased by it from CIHC, free and clear of any
mortgage, pledge, lien, security interest,
encumbrance, claim or equity created by or arising
through CIHC, assuming that the Underwriters
acquire the Securities without notice of any
adverse claim as such term is used in Section
8-302 of the Uniform Commercial Code as in effect
in the State of New York.
(xvii) Nothing has come to such counsel's
attention that causes such counsel to believe that
the Registration Statement (except for financial
statements and schedules or other financial
information or statistical data included therein,
as to which no opinion need be expressed), at the
time it became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading or that the Prospectuses (except for
financial statements and schedules or other
financial information or statistical data included
therein, as to which no opinion need be
expressed), at the U.S. Representation Date
(unless the term "Prospectuses" refers to
prospectuses which have been provided to the U.S.
Underwriters and the Managers by the Company for
use in connection with the offering of the
Securities which differs from the Prospectuses on
file at the Commission at the time the Registra-
tion Statement becomes effective, in which case at
the time it is first provided to the U.S. Under-
writers and the Managers for such use) or at the
Closing Time, included or includes an untrue
statement of a material fact or omitted or omits
to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(2) The favorable opinion, dated as of the
Closing Time, of Vinson & Elkins L.L.P., special
counsel to the Company, to the effect that:
(i) the Registration Statement and the
Prospectuses, and each amendment or supplement
thereto, as of their respective effective or issue
dates, or when amended, as appropriate, (other
than the financial statements and schedules or
other financial information or statistical data
included therein, as to which no opinion need be
expressed) complied as to form in all material
respects with the requirements of the 1933 Act and
the 1933 Act Regulations;
(ii) nothing has come to such counsel's
attention that causes such counsel to believe that
the Registration Statement (except for financial
statements and schedules or other financial
information or statistical data included therein,
as to which no opinion need be expressed), at the
time it became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading or that the Prospectuses (except for
financial statements and schedules and other
financial information or statistical data included
therein, as to which no opinion need be
expressed), at the U.S. Representation Date
(unless the term "Prospectuses" refers to
prospectuses which have been provided to the U.S.
Underwriters and the Managers by the Company for
use in connection with the offering of the
Securities which differs from the Prospectuses on
file at the Commission at the time the Registra-
tion Statement becomes effective, in which case at
the time it is first provided to the U.S. Underwriters
and the Managers for such use) or at the Closing
Time, included or includes an untrue statement
of a material fact or omitted or omits to state
a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(iii) The U.S. Purchase Agreement, the U.S.
Pricing Agreement, the International Purchase
Agreement and the International Pricing Agreement
have been duly authorized, executed and delivered
by the Company and constitute valid and binding
obligations of the Company enforceable in
accordance with their terms (except (1) as may be
limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws
affecting creditors' rights generally and except
that the remedies of specific performance and
injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the
discretion of the court before which any proceed-
ing therefor may be brought, and (2) that no
opinion need be given as to the enforceability of
the indemnity and contribution provisions here-
under or thereunder).
(3) The favorable opinion, dated as of the
Closing Time, of Sidley & Austin, counsel for the U.S.
Underwriters, with respect to the incorporation of the
Company, the validity of the Securities, the
Registration Statement, the Prospectuses and other
related matters as you may require, and the Company,
CIHC and Conseco shall have furnished to such counsel
such documents as they request for the purpose of
enabling them to pass upon such matters.
(c) At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the
Prospectuses, other than as stated or contemplated in the
Registration Statement or the Prospectuses, any material adverse
change or any development which will result in a prospective
material adverse change in the condition, financial or otherwise,
or in the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, and the U.S.
Representatives shall have received a certificate of the
president or a vice president of the Company, CIHC and Conseco,
respectively, and of the chief financial or chief accounting
officer of the Company, CIHC and Conseco, respectively, dated as
of the Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force
and effect as though expressly made at and as of the Closing
Time, (iii) the Company, CIHC and Conseco have complied with all
agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of each such officer's
knowledge and information, no proceedings for that purpose have
been initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement,
the U.S. Representatives shall have received from Coopers &
Lybrand a letter, dated such date, in form and substance
satisfactory to the U.S. Representatives, to the effect that (i)
they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in the
Registration Statement and covered by their opinions therein
comply with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations; (iii) based upon limited
procedures set forth in detail in such letter, nothing has come
to their attention which causes them to believe that (A) the
unaudited financial information of the Company and its
subsidiaries included in the Registration Statement do not comply
as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act
Regulations, or are not presented in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included
in the Registration Statement or (B) at the date of the latest
available balance sheet read by such accountants, or at a
subsequent specified date not more than five days prior to the
date of this Agreement or the International Purchase Agreement,
there was any increase in long-term debt or insurance liabilities
or any decrease in total assets, stockholder's equity or common
stock, as compared with amounts shown on the latest balance sheet
included in the Prospectuses, or (C) for the period from the
closing date of the latest income statement included in the
Prospectuses to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the
latest income statement included in the Prospectuses, in the
amounts of total revenues, total insurance policy income, net
investment income or net income except in all cases set forth in
this clause (iii) for changes, increases or decreases which the
Prospectuses discloses have occurred or may occur or which are
described in such letter; (iv) they have examined the statutory
financial statements of each of the Company's insurance
subsidiaries, from which certain ratios and other statistical
data contained in the Registration Statement have been derived,
and in their opinion such statements, with respect to each
insurance subsidiary, have for each relevant period been prepared
in accordance with accounting practices prescribed or permitted
by the appropriate insurance department of the state of domicile
of such subsidiary, and such accounting practices have been
applied on a consistent basis throughout the periods involved,
except as disclosed therein; (v) based upon the procedures set
forth in clause (iii) above and a reading of the "Selected
Historical Financial Information," and the "Pro Forma
Consolidated Financial Statements" and the information contained
under the caption "Management" included in the Registration
Statement, nothing has come to their attention that caused them
to believe that the "Selected Historical Financial Information"
and the "Pro Forma Consolidated Financial Statements" included in
the Registration Statement do not comply in all material respects
with the applicable requirements of Regulation S-K under the 1933
Act and the 1934 Act (e.g. "Selected Financial Data" (Item 301)
and "Supplementary Financial Information" (Item 302)), or that
the information set forth therein is not fairly stated in
relation to the financial statements from which it was derived,
and nothing has come to their attention that caused them to
believe that the information under the caption "Management"
contained in the Registration Statement does not comply in all
material respects with the applicable requirements of Item 402
("Executive Compensation") of such Regulation S-K; (vi) they are
unable to and do not express any opinion on the "Pro Forma
Consolidated Financial Statements" or on the pro forma
adjustments applied to the historical amounts included in such
statements; however, for purposes of such letter they have: (A)
read the "Pro Forma Consolidated Financial Statements," (B) made
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and
whether the "Pro Forma Consolidated Financial Statements" comply
in form in all material respects with the applicable accounting
requirements of Regulation S-X and (C) proved the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in the "Pro Forma Consolidated Financial
Statements"; and (vii) in addition to the examination referred to
in their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages, ratios and financial information that has
been derived from the accounting and financial records of the
Company that are subject to internal accounting controls which
are included in the Registration Statement and Prospectuses and
which are specified by the U.S. Representatives, and have found
such amounts, percentages, ratios and financial information to be
in agreement with the relevant accounting and financial records
of the Company and its subsidiaries identified in such letter.
(e) At the Closing Time, the U.S. Representatives
shall have received from Coopers & Lybrand a letter, dated as of
the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d) of this
Section, except that the specified date referred to shall be a
date not more than five days prior to the Closing Time and, if
the Company has elected to rely on Rule 430A under the 1933 Act
Regulations, to the further effect that they have carried out
procedures as specified in clause (v) of subsection (d) of this
Section with respect to certain amounts, percentages and
financial information specified by the U.S. Representatives and
deemed to be a part of the Registration Statement pursuant to
Rule 430(A)(b) and have found such amounts, percentages and
financial information to be in agreement with the records
specified in such clause (v).
(f) At the Closing Time, the Securities shall have
been and shall remain approved for listing on the NYSE upon
notice of issuance.
(g) At the Closing Time, and at each Date of Delivery,
if any, counsel for the U.S. Underwriters shall have been
furnished with such documents and opinions as they may reasonably
require with respect to unforeseen materially changed circum-
stances since the date of this Agreement and the International
Purchase Agreement for the purpose of enabling them to pass upon
the issuance and sale of the Securities as contemplated herein
and in the International Purchase Agreement and all proceedings
taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the U.S. Representatives
and counsel for the U.S. Underwriters.
(h) At the Closing Time, the U.S. Underwriters and
Managers shall receive agreements of all directors and executive
officers of the Company not to, without the prior written consent
of the U.S. Representatives, directly or indirectly, sell, offer
to sell, grant any option for the sale of, or otherwise dispose
of, or enter into any agreement to sell, any Common Stock or any
securities similar to the Securities or any security convertible
into or exchangeable or exercisable for any Common Stock or any
such similar securities during a period commencing on the date
hereto and ending 180 days from the date of the Prospectuses.
(i) In the event that the U.S. Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or
any portion of the U.S. Option Securities, the representations
and warranties of the Company, CIHC and Conseco contained herein
and the statements in any certificates furnished by the Company,
CIHC and Conseco hereunder shall be true and correct as of, and
as if made on, each Date of Delivery, and, at the relevant Date
of Delivery, the U.S. Representatives shall have received:
(1) A certificate, dated such Date of Delivery,
of the president or a vice president of the Company,
CIHC and Conseco, respectively, and the chief financial
or chief accounting officer of the Company, CIHC and
Conseco, respectively, confirming that the certificate
delivered at the Closing Time pursuant to Section 5(c)
hereof is true and correct as of, and as if made on,
such Date of Delivery.
(2) The favorable opinion of Lawrence W. Inlow,
Secretary and General Counsel for the Company, CIHC and
Conseco, in form and substance satisfactory to counsel
for the U.S. Underwriters, dated such Date of Delivery,
relating to the U.S. Option Securities and otherwise to
the same effect as the opinion required by Section
5(b)(1) hereof.
(3) The favorable opinion of Vinson & Elkins
L.L.P., special counsel for the Company, in form and
substance satisfactory to counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to
the U.S. Option Securities and otherwise to the same
effect as the opinion required by Section 5(b)(2)
hereof.
(4) The favorable opinion of Sidley & Austin,
counsel for the U.S. Underwriters, dated such Date of
Delivery, relating to the U.S. Option Securities and
otherwise to the same effect as the opinion required by
Section 5(b)(3) hereof.
(5) A letter from Coopers & Lybrand in form and
substance satisfactory to the U.S. Underwriters and
dated such Date of Delivery, substantially the same in
form and substance as the letters furnished to the U.S.
Representatives pursuant to Section 5(d) hereof, except
that the "specified date" in the letter furnished
pursuant to this Section 5(i)(5) shall be a date not
more than five days prior to such Date of Delivery.
If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the U.S. Representatives by notice
to the Company, CIHC and Conseco at any time at or prior to the
Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4.
SECTION 6. Indemnification.
(a) The Company, CIHC and Conseco, jointly and
severally, agree to indemnify and hold harmless each U.S.
Underwriter and each person, if any, who controls any U.S.
Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement
(or any amendment thereto), including the information
deemed to be part of the Registration Statement
pursuant to Rule 430A(b) of the 1933 Act Regulations,
if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained
in any preliminary prospectuses or the Prospectuses (or
any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is
effected with the written consent of the Company, CIHC
or Conseco, as the case may be; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof,
the reasonable fees and disbursements of counsel chosen
by Merrill Lynch), reasonably incurred in investi-
gating, preparing for or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that (A) the foregoing indemnity shall not
apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by
any Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or any
preliminary prospectuses or the Prospectuses (or any amendment or
supplement thereto); and (B) the foregoing indemnity agreement
with respect to any preliminary prospectuses shall not inure to
the benefit of the Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities,
or any person controlling any U.S. Underwriter, if a copy of the
Prospectuses (as then amended or supplemented, if the Company
shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of the U.S. Underwriters to
such person if such is required by law at or prior to the written
confirmation of the sale of such Securities to such person and if
the Prospectuses (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability.
(b) Each U.S. Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, CIHC, Conseco
and each person, if any, who controls the Company, CIHC or
Conseco within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
preliminary prospectuses or the Prospectuses (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such U.S.
Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or such
preliminary prospectuses or the Prospectuses (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may
be sought hereunder, but the failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. If it so
elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties
reasonably object to such assumption on the ground that there may
be legal defenses available to them which are different from or
in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the
indemnifying parties be liable for reasonable fees and expenses
of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party shall not be
liable for any settlement or any action or claim effected without
its consent, which consent shall not unreasonably withheld. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of
such proceeding.
SECTION 7. Contribution.
In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its
terms, the Company, CIHC, Conseco and the U.S. Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Company, CIHC and Conseco and one or
more of the U.S. Underwriters, as incurred, in such proportions
that the U.S. Underwriters are responsible for that portion
represented by the percentage that the underwriting discount
appearing on the cover page of the U.S. Prospectus bears to the
initial public offering price appearing thereon and the Company,
CIHC and Conseco are jointly and severally responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who
controls the Company, CIHC or Conseco within the meaning of
Section 15 of the 1933 Act shall have the same rights to
contribution as the Company, CIHC and Conseco.
SECTION 8. Representations, Warranties and Agreements
to Survive Delivery.
All representations, warranties and agreements
contained in this Agreement and the U.S. Pricing Agreement, or
contained in certificates of officers of the Company, CIHC or
Conseco submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or
on behalf of any U.S. Underwriter or controlling person, or by or
on behalf of the Company, CIHC and Conseco, and shall survive
delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) The U.S. Representatives may terminate this
Agreement and the U.S. Pricing Agreement, by notice to the
Company, CIHC and Conseco, at any time at or prior to the Closing
Time (i) if there has been, since the date of this Agreement or
since the respective dates as of which information is given in
the Registration Statement (except as otherwise stated or
contemplated therein at the date of the U.S. Pricing Agreement),
any material adverse change or any development which will result
in a prospective material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of
the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak of hostilities or other
calamity or crisis, or any material worsening thereof, the effect
of which on the financial markets of the United States is such as
to make it, in the judgment of the U.S. Representatives,
impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in the Common
Stock has been suspended by the Commission, or if trading
generally on either the American Stock Exchange or the NYSE has
been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or California
authorities.
(b) If this Agreement and the U.S. Pricing Agreement
are terminated pursuant to this Section, such termination shall
be without liability of any party to any other party except as
provided in Section 4, and provided further that Sections 6 and 7
hereof shall survive such termination.
SECTION 10. Default by One or More of the U.S.
Underwriters.
If one or more of the U.S. Underwriters shall fail at
Closing Time to purchase the Initial U.S. Securities which it or
they are obligated to purchase under this Agreement and the U.S.
Pricing Agreement (the "Defaulted Securities"), the U.S.
Representatives shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting U.S.
Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however,
the U.S. Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of Initial U.S. Securities, the non-
defaulting U.S. Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the number of Initial U.S. Securities, this Agreement shall
terminate without liability on the part of any non-defaulting
U.S. Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting U.S. Underwriter from liability in respect of its
default.
In the event of any such default which does not result
in a termination of this Agreement, either the U.S.
Representatives, the Company, CIHC or Conseco shall have the
right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the
Registration Statement or Prospectuses or in any other documents
or arrangements.
The U.S. Underwriters shall also have the right to
amend Schedule A hereto by making such substitutions or
corrections as indicated in the U.S. Pricing Agreement.
SECTION 11. Notices.
All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication.
Notices to the U.S. Underwriters shall be directed to Merrill
Lynch & Co., 5500 Sears Tower, Chicago, Illinois 60606,
Attention: Robert S. Whitelaw, Managing Director, with a copy to
Sidley & Austin, One First National Plaza, Chicago, Illinois
60603, Attention: John J. Sabl, Esq.; notices to the Company
shall be directed to it at 5555 San Felipe Road, Suite 900,
Houston Texas 77056, Attention: Richard W. Scott, Esq.; notices
to CIHC and Conseco shall be directed to them at Conseco, Inc.,
11825 North Pennsylvania Street, Carmel, Indiana 46032,
Attention: Lawrence W. Inlow, Esq.
SECTION 12. Parties.
This Agreement and the U.S. Pricing Agreement shall
each inure to the benefit of and be binding upon the U.S.
Underwriters, the Company, CIHC and Conseco and their respective
successors. Nothing expressed or mentioned in this Agreement or
the U.S. Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the U.S.
Underwriters, the Company, CIHC and Conseco and their respective
successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or the U.S. Pricing
Agreement or any provision herein or therein contained. This
Agreement and the U.S. Pricing Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters, the Company, CIHC and
Conseco and their respective successors, and said controlling
persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any U.S.
Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. Governing Law and Time.
This Agreement and the U.S. Pricing Agreement shall be
governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be
performed in said State. Unless otherwise set forth herein,
specified times of day refer to New York City time.
SECTION 14. Waiver of Right to Jury Trial.
Each of the Company, CIHC and Conseco (on their own
behalf and, to the extent permitted by applicable law, on behalf
of their respective shareholders) and the U.S. Underwriters waive
all rights to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise)
related to or arising out of the engagement of the U.S.
Underwriters pursuant to, or the performance by the U.S.
Underwriters of the services contemplated by, this Agreement.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the U.S. Underwriters, the Company, CIHC and Conseco in
accordance with its terms.
Very truly yours,
WESTERN NATIONAL CORPORATION
By: /s/ Michael J. Poulos
-------------------------
Name: Michael J. Poulos
Title: Chairman of the Board
and President
CONSECO, INC.
By: /s/ Rollin M. Dick
---------------------------
Name: Rollin M. Dick
Title: Executive Vice President
CONSECO INVESTMENT HOLDING COMPANY
By: /s/ William T. Devanney, Jr.
----------------------------
Name: William T. Devanney, Jr.
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
LADENBURG, THALMANN & CO. INC.
For themselves and as U.S. Representatives
of the other U.S. Underwriters named in
the U.S. Purchase Agreement.
By: MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: /s/ Robert S. Whitelaw
Name: Robert S. Whitelaw
Title: Managing Director
[Download Table]
SCHEDULE A
Number of
Initial
Name of U.S. Underwriter U.S. Securities
------------------------ ----------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . 2,724,375
Dean Witter Reynolds Inc.. . . . . . . . . 2,724,375
Goldman, Sachs & Co. . . . . . . . . . . . 2,724,375
Ladenburg, Thalmann & Co. Inc. . . . . . . 2,724,375
Bear, Stearns & Co. Inc. . . . . . . . . . 400,000
CS First Boston Corporation. . . . . . . . 400,000
Alex Brown & Sons Incorporated. . . . . . 400,000
Dillon, Read & Co. Inc.. . . . . . . . . . 400,000
Donaldson, Lufkin & Jenrette Securities
Corporation . . . . . . . . . . . . . . 400,000
A.G. Edwards & Sons, Inc.. . . . . . . . . 400,000
Hambrecht & Quist Incorporated . . . . . . 400,000
Kidder, Peabody & Co. Incorporated . . . . 400,000
Lazard Freres & Co.. . . . . . . . . . . . 400,000
Lehman Brothers Inc. . . . . . . . . . . . 400,000
Montgomery Securities. . . . . . . . . . . 400,000
Morgan Stanley & Co. Incorporated. . . . . 400,000
Oppenheimer & Co. Inc. . . . . . . . . . . 400,000
PaineWebber Incorporated . . . . . . . . . 400,000
Robertson, Stephens & Company. . . . . . . 400,000
Salomon Brothers Inc . . . . . . . . . . . 400,000
Smith Barney Shearson Inc. . . . . . . . . 400,000
Wertheim Schroder & Co. Incorporated . . . 400,000
RAS Securities Corp. . . . . . . . . . . . 400,000
Sands Brothers & Co., Ltd. . . . . . . . . 400,000
Advest, Inc. . . . . . . . . . . . . . . . 200,000
Arnhold and S. Bleichroeder, Inc.. . . . . 200,000
Robert W. Baird & Co. Incorporated . . . . 200,000
J.C. Bradford & Co.. . . . . . . . . . . . 200,000
The Chicago Corporation. . . . . . . . . . 200,000
Conning & Company. . . . . . . . . . . . . 200,000
Cowen & Company. . . . . . . . . . . . . . 200,000
Dain Bosworth Incorporated . . . . . . . . 200,000
Doft & Co., Inc. . . . . . . . . . . . . . 200,000
Fahnestock & Co. Inc.. . . . . . . . . . . 200,000
First Albany Corporation . . . . . . . . . 200,000
First Manhattan Co.. . . . . . . . . . . . 200,000
First of Michigan Corporation. . . . . . . 200,000
Furman Selz Incorporated . . . . . . . . . 200,000
Gruntal & Co., Incorporated. . . . . . . . 200,000
Interstate/Johnson Lane Corporation. . . . 200,000
Janney Montgomery Scott Inc. . . . . . . . 200,000
C.J. Lawrence/Deutsche Bank Securities
Corporation . . . . . . . . . . . . . . 200,000
Legg Mason Wood Walker, Incorporated . . . 200,000
Mabon Securities Corp. . . . . . . . . . . 200,000
McDonald & Company Securities, Inc.. . . . 200,000
Morgan Keegan & Company, Inc.. . . . . . . 200,000
Needham & Company, Inc.. . . . . . . . . . 200,000
Neuberger & Berman . . . . . . . . . . . . 200,000
Piper Jaffray Inc. . . . . . . . . . . . . 200,000
The Principal/Eppler, Guerin &
Turner, Inc.. . . . . . . . . . . . . . 200,000
Ragen MacKenzie Incorporated
Rauscher Pierce Refsnes, Inc.. . . . . . . 200,000
Raymond James & Associates, Inc. . . . . . 200,000
The Robinson-Humphrey Company, Inc.. . . . 200,000
Stifel, Nicolaus & Company, Incorporated.. 200,000
Sutro & Co. Incorporated . . . . . . . . . 200,000
Tucker Anthony Incorporated. . . . . . . . 200,000
Wheat, First Securities, Inc.. . . . . . . 200,000
M.R. Beal & Company. . . . . . . . . . . . 100,000
Brean Murray, Foster Securities Inc. . . . 100,000
Crowell, Weedon & Co.. . . . . . . . . . . 100,000
Dominick & Dominick, Incorporated. . . . . 100,000
Laidlaw Equities, Inc. . . . . . . . . . . 100,000
Mesirow Financial, Inc.. . . . . . . . . . 100,000
Northington Capital Markets, Inc.. . . . . 100,000
The Ohio Company . . . . . . . . . . . . . 100,000
Parker/Hunter Incorporated . . . . . . . . 100,000
Paulsen, Dowling Securities, Inc.. . . . . 100,000
Pennsylvania Merchant Group Ltd. . . . . . 100,000
Scott & Stringfellow, Inc. . . . . . . . . 100,000
The Seidler Companies Incorporated . . . . 100,000
Muriel Siebert & Co., Inc. . . . . . . . . 100,000
Spencer Trask Securities Incorporated. . . 100,000
Traub and Company, Inc.. . . . . . . . . . 100,000
Van Kasper & Company . . . . . . . . . . . 100,000
Wedbush Morgan Securities. . . . . . . . . 100,000
__________
Total. . . . . . . . . . . . . . . . . . . 27,497,500
__________
__________
Exhibit A
WESTERN NATIONAL CORPORATION
(a Delaware corporation)
27,497,500 Shares of Common Stock
PRICING AGREEMENT
_____________, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
LADENBURG, THALMANN & CO. INC.
as U.S. Representatives of the several U.S. Underwriters
named in the within-mentioned U.S. Purchase Agreement
c/o Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
Dear Sirs:
Reference is made to the U.S. Purchase Agreement dated
____________, 1994 (the "U.S. Purchase Agreement") relating to
the purchase by the several U.S. Underwriters named in Schedule A
thereto, for whom Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Dean Witter Reynolds Inc., Goldman,
Sachs & Co. and Ladenburg, Thalmann & Co. Inc. are acting as
representatives (the "U.S. Representatives"), of the above shares
of Common Stock (the "Securities") of Western National
Corporation, a Delaware corporation (the "Company").
Pursuant to Section 2 of the U.S. Purchase Agreement,
the Company, Conseco Investment Holding Company, a Delaware
corporation ("CIHC"), and Conseco, Inc., an Indiana corporation
("Conseco"), agree with each U.S. Underwriter as follows:
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall
be $_____.
2. The purchase price per share for the Securities to
be paid by the several U.S. Underwriters shall be $_____,
being an amount equal to the initial public offering price
set forth above less $____ per share.
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If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the U.S. Underwriters, the Company, CIHC and Conseco in
accordance with its terms.
Very truly yours,
WESTERN NATIONAL CORPORATION
By: _____________________________
Name:
Title:
CONSECO, INC.
By: _____________________________
Name:
Title:
CONSECO INVESTMENT HOLDING COMPANY
By:________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
LADENBURG, THALMANN & CO. INC.
For themselves and as U.S. Representatives
of the other U.S. Underwriters named in
the U.S. Purchase Agreement.
By: MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: ____________________________________
Authorized Signatory
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 3/31/94 | | | | | | | 10-Q |
| | 2/8/94 | | 1 |
| For Period End: | | 12/31/93 | | | | | | | 11-K |
| | 9/30/93 | | 12 |
| | 9/9/93 | | 12 |
| List all Filings |
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