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-10.33.2 — Exhibit 10.33.2 to Conseco, Inc. 1993 Form 10-K
Exhibit Table of Contents
WESTERN NATIONAL CORPORATION
(a Delaware corporation)
4,852,500 Shares of Common Stock
(Par Value $.001 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
February 8, 1994
MERRILL LYNCH INTERNATIONAL LIMITED
DEAN WITTER INTERNATIONAL LTD.
GOLDMAN SACHS INTERNATIONAL LIMITED
LADENBURG, THALMANN & CO. INC.
as Lead Managers of the several Managers
c/o Merrill Lynch International Limited
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Dear Sirs:
Western National Corporation, a United States company incorporated
in the State of Delaware (the "Company"), Conseco Investment Holding Company,
a United States company incorporated in the State of Delaware ("CIHC"), and
Conseco, Inc., a United States company incorporated in the State of Indiana
("Conseco"), confirm their agreement with Merrill Lynch International Limited
("Merrill Lynch"), Dean Witter International Ltd. ("Dean Witter"), Goldman
Sachs International Limited ("Goldman Sachs") and Ladenburg, Thalmann & Co.
Inc. ("Ladenburg") and each of the other underwriters named in Schedule A
hereto (collectively, the "Managers," which term shall also include any
underwriter substituted as hereinafter provided in Section 10), for whom
Merrill Lynch, Dean Witter, Goldman Sachs and Ladenburg are acting as lead
managers (in such capacity, the "Lead Managers"), with respect to the sale by
the Company and CIHC, acting severally and not jointly, and the purchase by the
Managers, acting severally and not jointly, of 300,000 shares and 4,552,500
shares, respectively, of the respective number of shares of Common Stock of the
Company, par value $.001 per share ("Common Stock"), set forth in Schedule A
and with respect to the grant by the Company and CIHC to the Managers and U.S.
Underwriters (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, in each case except
as may otherwise be provided in the International Pricing Agreement, as
hereinafter defined. The 4,852,500 shares of Common Stock (the "Initial
International Securities") and all or any part of the Managers' pro rata
portion of the 727,875 shares of Common Stock subject to the option described
in Section 2(b) hereof (the "International Option Securities") to be purchased
by the Managers are collectively hereinafter called the "International
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 "U.S. Purchase
Agreement") providing for the offering by the Company and CIHC of 27,497,500
shares of Common Stock (the "Initial U.S. Securities") through arrangements
with certain underwriters in the United States (the "U.S. Underwriters") for
which Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Dean Witter Reynolds Inc., Goldman, Sachs & Co. and Ladenburg are acting as
representatives (the "U.S. Representatives") and the grant by the Company and
CIHC to the U.S. Underwriters of an option to purchase all or any part of the
U.S. Underwriters' pro rata portion of the Option Securities (the "U.S. Option
Securities") to cover over-allotments. The Initial U.S. Securities and the
U.S. Option Securities are hereinafter called the "U.S. Securities." It is
understood that the Company and CIHC are not obligated to sell, and the
Managers are not obligated to purchase, any Initial International Securities
unless all of the Initial U.S. Securities are contemporaneously purchased by
the U.S. Underwriters.
The Managers and the U.S. Underwriters are hereinafter collectively
called the "Underwriters," the Initial U.S. Securities and the Initial
International Securities are hereinafter collectively called the "Initial
Securities," and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities."
Prior to the purchase and public offering of the International
Securities by the several Managers, the Company, CIHC, Conseco and the Lead
Managers, acting on behalf of the several Managers, shall enter into an
agreement substantially in the form of Exhibit A hereto (the "International
Pricing Agreement"). The International Pricing Agreement may take the
form of an exchange of any standard form of written telecommunication between
the Company, CIHC, Conseco and the Lead Managers and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of
the International Securities will be governed by this Agreement, as
supplemented by the International Pricing Agreement. From and after the date
of the execution and delivery of the International Pricing Agreement, this
Agreement shall be deemed to incorporate the International Pricing Agreement.
The initial public offering price and the purchase price with respect to the
U.S. Securities shall be set forth in a separate instrument (the "U.S. Pricing
Agreement"), the form of which is attached to the U.S. Purchase Agreement.
The Company has filed with the United States 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 part thereof pursuant to Rule
430A(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations")), as from time to time amended or supplemented pursuant
to the 1933 Act, are hereinafter referred to as the "Registration Statement,"
the "International Prospectus" and the "U.S. Prospectus," respectively, and the
International and U.S. Prospectuses are hereinafter together called
"Prospectuses" and, each individually, a "Prospectus," except that if any
revised prospectus shall be provided to the Managers or the U.S. Underwriters
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) of
the 1933 Act Regulations), the terms "International Prospectus" and "U.S.
Prospectus" shall refer to each such revised prospectus from and after the time
it is first provided to the Managers or the U.S. Underwriters, as the case
may be, for such use.
The Company, CIHC and Conseco understand that the Managers propose
to make a public offering of the International Securities as soon as the Lead
Managers deem advisable after the Registration Statement becomes effective and
the International Pricing Agreement has been executed and delivered. The price
per share for the U.S. Securities to be purchased by the U.S. Underwriters
pursuant to the U.S. Purchase Agreement shall be identical to the price per
share for the International Securities to be purchased by the Managers
hereunder.
[FN]
1. Two forms of prospectus are to be used in connection with the
offering and sale of the Securities: one relating to the International
Securities (the "International Prospectus"), and one relating to the U.S.
Securities (the "U.S. Prospectus").
SECTION 1. Representations and Warranties.
(a) The Company, CIHC and Conseco represent and warrant to each of
the Managers as of the date hereof and as of the date of the International
Pricing Agreement (such latter date being hereinafter referred to as the
"International Representation Date") as follows:
(i) At the time the Registration Statement
becomes effective and at the International
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
International 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 Manager 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 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 Managers pursuant to this Agreement and
to the U.S. Underwriters pursuant to the U.S. Purchase
Agreement against payment of the consideration set
forth in the International Pricing Agreement and the
U.S. 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 International
Pricing Agreement, the U.S. Purchase Agreement and the
U.S. 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 International
Pricing Agreement, the U.S. Purchase Agreement and the
U.S. 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 U.S. Purchase Agreement.
(xv) This Agreement and the U.S. Purchase
Agreement have been, and at the International
Representation Date and the U.S. Representation Date,
the International Pricing Agreement and the U.S.
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 International Pricing Agreement,
the U.S. Purchase Agreement and the U.S. 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 U.S. 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 U.S. Purchase Agreement; and upon
delivery of the Securities to be sold by CIHC
hereunder and under the U.S. 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
International Pricing Agreement, the U.S. Purchase
Agreement and the U.S. 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
have the full right, power and authority to enter
into this Agreement, the International Pricing
Agreement, the U.S. Purchase Agreement and the
U.S. 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 Lead Managers or to counsel for the Managers shall
be deemed a representation and warranty by the Company, CIHC or Conseco, as the
case may be, to each Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Managers; 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 Manager, severally
and not jointly, and each Manager, severally and not jointly, agrees to
purchase from the Company and CIHC, at the price per share set forth in the
International Pricing Agreement, that proportion of the 300,000 shares and
4,552,500 shares being sold by the Company and CIHC, respectively, which the
number of Initial International Securities set forth in Schedule A opposite the
name of such Manager (plus any additional number of Initial International
Securities which such Manager may become obligated to purchase pursuant to the
provisions of Section 10 hereof) bears to the total number of Initial
International Securities (except as otherwise provided in the International
Pricing Agreement), subject, in each case, to such adjustments as the Managers
in their discretion shall make to eliminate any sales or purchases of
fractional securities.
(1) If the Company has elected not to rely upon
Rule 430A under the 1933 Act Regulations, the public
offering price and the purchase price per share to be
paid by the several Managers for the Securities
(collectively, the "International Pricing Terms") have
each been determined and set forth in the International
Pricing Agreement, dated the date hereof, and an
amendment to the Registration Statement and the
Prospectuses containing such information 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 share to be paid by the Managers for the
International Securities shall be an amount equal to
the initial public offering price per share, less an
amount per share to be determined by agreement among
the Lead Managers, the Company, CIHC and Conseco. The
International Pricing Terms likewise shall be
determined by agreement among the Lead Managers, the
Company, CIHC and Conseco. The International Pricing
Terms, when so determined, shall be set forth in the
International Pricing Agreement. In the event that
such International Pricing Terms have not been agreed
upon and the International Pricing Agreement has not
been executed and delivered by all 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 Lead Managers, the Company, CIHC and Conseco.
(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 Underwriters, severally and not
jointly, to purchase up to an additional 4,852,500 shares of Common Stock at
the price per share set forth in the International Pricing Agreement and the
U.S. Pricing Agreement, of which 4,124,625 shares shall be the pro rata portion
for the U.S. Underwriters and 727,875 shares shall be the pro rata portion for
the Managers. The option hereby granted will expire 30 days after the later
of (i) the date the Registration Statement becomes effective, if the Company
has elected not to rely on Rule 430A under the 1933 Act Regulations, or (ii)
the International 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 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 Lead Managers and the U.S. Representatives to the Company, CIHC
and Conseco setting forth the number of Option Securities as to which the
Underwriters are exercising the option and the time and date of payment for
such Option Securities. Such time and date of delivery for the International
Option Securities (the "Date of Delivery") shall be determined by the Lead
Managers, but shall not be later than seven full business days after the
exercise of said option, and in no event prior to Closing Time, as hereinafter
defined. If the option is exercised as to all or any portion of the
International Option Securities, each of the Managers, acting severally and not
jointly, will purchase from the Company and CIHC that portion of the number of
International 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
International Securities set forth in Schedule A opposite the name of such
Manager bears to the total number of Initial International Securities (except
as otherwise provided in the International Pricing Agreement), subject in each
case to such adjustments as the Lead Managers in their discretion shall make
to eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of certificates
for, the International Securities to be purchased by the Managers shall be made
at the offices of the Lead Managers in New York, New York or at such other
place as shall be agreed upon by the Lead Managers, the Company, CIHC and
Conseco, at 10:00 a.m. (New York City time) on the fifth business day (unless
postponed in accordance with the provisions of Section 10) following 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
International Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Lead Managers, the
Company, CIHC and Conseco (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that any or all of
the International Option Securities are purchased by the Managers, payment of
the purchase price, and delivery of certificates, for such International Option
Securities shall be made at the above-mentioned offices of the Lead Managers,
or at such other place as shall be agreed upon by the Lead Managers, the
Company, CIHC and Conseco, on the Date of Delivery as specified in the notice
from the Lead Managers to the Company, CIHC and Conseco. Payment 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 Lead Managers
for the respective accounts of the Managers of certificates for the
International Securities to be purchased by them. Certificates for the
International Securities hall be in such denominations and registered in such
names as the Lead Managers may request in writing at least two business
days before Closing Time or the Date of Delivery, as the case may be. It is
understood that each Manager has authorized the Lead Managers, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the International Securities which it has agreed to purchase. The Lead
Managers, individually and not as representatives of the Managers, may (but
shall not be obligated to) make payment of the purchase price for the
International Securities to be purchased by any Manager whose check has not
been received by Closing Time or the Date of Delivery, as the case may be, but
such payment shall not relieve such Manager from its obligations hereunder.
The certificates for the Initial International Securities and the International
Option Securities will be made available for examination and packaging by the
Lead Managers not later than 10:00 a.m. on the last business day prior to
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(p) below, each of the
Company, CIHC and Conseco covenants, with each of the Managers as follows:
(a) The Company will notify the Lead Managers 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 Lead Managers 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
Managers 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 Lead Managers 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 Lead Managers or counsel for the Managers shall
reasonably object.
(c) The Company will deliver to the Lead Managers 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 Lead Managers
as many conformed copies of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) as the Lead Managers may request.
(d) The Company will furnish to each Manager, 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 Managers 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 Managers, to amend or supplement
the Prospectuses in order to make the International 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 International
Prospectus (in form and substance reasonably satisfactory to counsel for the
Managers) so that, as so amended or supplemented, the International 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 Managers as many copies of
such amendment or supplement as the Managers may request.
(f) The Company will endeavor, in cooperation with the Managers 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 Lead Managers 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 International 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 Lead Managers 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 Lead Managers or the Managers'
counsel with an opportunity to comment.
(k) For a period of one year after the Closing Time, the Company
will furnish to the Lead Managers 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 Lead Managers,
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 pursuant to 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 agrees that no action has been or will be taken in
any jurisdiction outside the United States and Canada by it that would permit
a public offering of the Securities, or possession or distribution of the
International Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus issued in connection with the offering of the
Securities, or any other offering material, in any country or jurisdiction
where action for that purpose is required.
(o) The Company and CIHC will indemnify and hold harmless the
Managers 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.
(p) 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
International Pricing Agreement, the U.S. Purchase Agreement and the U.S.
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 International
Pricing Agreement, the U.S. Purchase Agreement and the U.S. 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 Lead Managers in accordance
with the provisions of Section 5 or Section 9(a)(i), the Company, CIHC and
Conseco shall reimburse the Managers for all of their out-of-pocket expenses,
including the fees and disbursements of counsel for the Managers.
SECTION 5. Conditions of Managers' Obligations.
The obligations of the Managers 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 Lead Managers, 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 International 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 Lead Managers 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 Lead Managers 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
International 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 International 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 International 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.
(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
Managers, 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
Lead Managers 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 Lead
Managers shall have received from Coopers & Lybrand a letter, dated such date,
in form and substance satisfactory to the Lead Managers, 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," 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 inquires 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 Lead
Managers, 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 Lead Managers 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 Lead Managers 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 Managers shall have been furnished with such documents and
opinions as they may reasonably require with respect to unforeseen materially
changed circumstances since the date of this Agreement and the U.S. Purchase
Agreement for the purpose of enabling them to pass upon the issuance and sale
of the Securities as contemplated herein and in the U.S. 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 Lead Managers and counsel for the
Managers.
(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 Lead Managers, 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 Managers 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 Lead
Managers 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 Managers, dated such Date of Delivery, relating
to the International 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 Managers,
dated such Date of Delivery, relating to the
International 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 Managers, dated such Date of Delivery,
relating to the International 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 Managers and dated such
Date of Delivery, substantially the same in form and
substance as the letters furnished to the Lead Managers
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 Lead Managers 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 Manager and each person, if any, who controls
any Manager 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 Manager, 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 Managers 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 Manager 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 Manager 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
Managers 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 Managers, as incurred,
in such proportions that the Managers are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the International 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 International 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 Manager or controlling person, or by or on behalf
of the Company, CIHC and Conseco, and shall survive delivery of the Securities
to the Manager.
SECTION 9. Termination of Agreement.
(a) The Lead Managers may terminate this Agreement and the
International 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 International 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 Lead
Managers, 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 or (iv) if there has occurred any
change or development involving a prospective change in national or
international political, financial or economic controls, which in the opinion
of the Lead Managers is likely to have a material adverse effect on the market
for the Securities.
(b) If this Agreement and the International 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 Managers.
If one or more of the Managers shall fail at Closing Time to purchase
the Initial International Securities which it or they are obligated to purchase
under this Agreement and the International Pricing Agreement (the "Defaulted
Securities"), the Lead Managers shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Managers, 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 Lead Managers 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 International Securities, the non-defaulting Managers 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 Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Initial International Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Manager.
No action taken pursuant to this Section shall relieve any defaulting
Manager 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 Lead Managers, 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 Managers shall also have the right to amend Schedule A hereto by
making such substitutions or corrections as indicated in the International
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 Lead
Managers shall be directed to the Lead Managers at Merrill Lynch International
Limited, n:\Ropemaker Place, 25 Ropemaker Street, London EC2Y 9LY, England,
attention of Christine Burgess-Allen, 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 International Pricing
Agreement shall each inure to the benefit of and be binding upon the Managers,
the Company, CIHC and Conseco and their respective successors, heirs and legal
representatives. Nothing expressed or mentioned in this Agreement or the
International Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Managers, the Company, CIHC and
Conseco and their respective successors, heirs and legal representatives 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 International
Pricing Agreement or any provision herein or therein contained. This Agreement
and the International Pricing Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
Managers, the Company, CIHC and Conseco and their respective successors, heirs
and legal representatives, 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 International Securities
from any Manager shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement and the
International 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. 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 Managers
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 Managers pursuant to, or the performance by the
Managers 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 among the Managers, 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 INTERNATIONAL LIMITED
DEAN WITTER INTERNATIONAL LTD.
GOLDMAN SACHS INTERNATIONAL LIMITED
LADENBURG, THALMANN & CO. INC.
For themselves and as Lead Managers of the other Managers named
in Schedule A hereto.
By: Merrill Lynch International Limited
By: /s/ Robert S. Whitelaw
___________________________________
(Attorney-in-Fact)
SCHEDULE A
[Download Table]
Number of
Initial
International
Securities
Name of Manager to be Purchased
Merrill Lynch International Limited. . . . . 1,088,125
Dean Witter International Ltd. . . . . . . . 1,088,125
Goldman Sachs International Limited. . . . . 1,088,125
Ladenburg, Thalmann & Co. Inc. . . . . . . . 1,088.125
ABN AMRO Bank N.V. . . . . . . . . . . . . . 100,000
Credit Lyonnais Securities . . . . . . . . . 100,000
Dresdner Bank Aktiengesellschaft . . . . . . 100,000
Nomura International plc . . . . . . . . . . 100,000
N M Rothschild & Sons Limited. . . . . . . . 100,000
---------
Total. . . . . . . . . . . . . . . . . 4,852,500
---------
---------
Exhibit A
WESTERN NATIONAL CORPORATION
(a Delaware corporation)
4,852,500 Shares of Common Stock
(Par Value $.001 Per Share)
INTERNATIONAL PRICING AGREEMENT
, 1994
MERRILL LYNCH INTERNATIONAL LIMITED
DEAN WITTER INTERNATIONAL LTD.
GOLDMAN SACHS INTERNATIONAL LIMITED
LADENBURG, THALMANN & CO. INC.
as Lead Managers of the several Managers
named in the within-mentioned International
Purchase Agreement
c/o Merrill Lynch International Limited
Ropemaker Place
25 Ropemaker Street
London EC2Y 9lY
England
Dear Sirs:
Reference is made to the International Purchase Agreement, dated
, 1994 (the "International Purchase Agreement"), relating to the purchase
by the several Managers named in Schedule A thereto, for whom Merrill Lynch
International Limited, Dean Witter International Ltd., Goldman Sachs
International Limited and Ladenburg, Thalmann & Co. Inc. are acting as
representatives (the "Lead Managers"), of the above shares of Common Stock (the
"Initial International Securities"), of Western National Corporation (the
"Company").
Pursuant to Section 2 of the International Purchase Agreement, the
Company, Conseco Investment Holding Company, a Delaware corporation ("CIHC"),
and Conseco, Inc., an Indiana corporation ("Conseco"), agree with each Manager
as follows:
1. The initial public offering price per share for the Initial
International Securities, determined as provided in said Section 2, shall be
$ .
2. The purchase price per share for the Initial International
Securities to be paid by the several Managers shall be $ , being an amount
equal to the initial public offering price set forth above less $ per
share.
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 Managers, the Company, CIHC and Conseco in accordance
with its terms.
Very truly yours,
WESTERN NATIONAL CORPORATION
By:________________________________
Name:
Title:
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CONSECO, INC.
By:
Name:
Title:
CONSECO INVESTMENT HOLDING
COMPANY
By:________________________________
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
MERRILL LYNCH INTERNATIONAL LIMITED
DEAN WITTER INTERNATIONAL LTD.
GOLDMAN SACHS INTERNATIONAL LIMITED
LADENBURG, THALMANN & CO. INC.
For themselves and as Lead Managers of the other Managers named
in Schedule A to the International Purchase Agreement.
By: Merrill Lynch International Limited
By: ___________________________________
___________________________________
(Attorney-in-Fact)
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 | | 11 |
| List all Filings |
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