AMENDMENT AND SUPPLEMENT
TO PURCHASE AGREEMENT
December 1, 1999
Warburg Dillon Read LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
UBS AG, London Branch
c/o Warburg Dillon Read LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
This letter agreement (this "Purchase Agreement Supplement")
amends and supplements the Purchase Agreement, dated June 29, 1999, among
Conseco, Inc., an Indiana corporation (the "Company"), Warburg Dillon Read LLC
(the "Purchaser") and UBS AG, London Branch (the "Selling Stockholder"). Except
as otherwise expressly provided herein, capitalized terms used in this Purchase
Agreement Supplement have the meanings given such terms in the Purchase
Agreement.
The Company, the Purchaser and the Selling Stockholder hereby
agree as follows:
1. Concurrent with and as a condition to the effectiveness of this
Purchase Agreement Supplement, the Company and the Selling Stockholder have
entered into a restated equity forward confirmation, which amends and restates
the June 29, 1999 equity forward confirmation between such parties. References
in the Purchase Agreement to the "Forward Purchase Agreement" shall hereafter
mean such equity forward confirmation as amended and restated effective December
1, 1999.
2. From and after such time as the Company may be required pursuant to
the provisions of the Forward Purchase Agreement (or may otherwise elect) to
file one or more
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additional registration statements with the Commission under the 1933 Act
(including but not limited to a Rule 462(b) Registration Statement) with respect
to any of the Shares or the Predelivered Shares (as defined in the Forward
Purchase Agreement), then, except where the context otherwise requires, (A) the
term "Registration Statement" as used in the Purchase Agreement shall thereafter
include each such additional registration statement (including but not limited
to any Rule 462(b) Registration Statement) filed with respect to any of the
Shares or the Predelivered Shares (as defined in the Forward Purchase
Agreement), (B) the term "Prospectus" shall thereafter include the final
prospectus included in such additional registration statement, in the form in
which it is filed with the Commission under Rule 424 or (if no such filing is
required) first furnished to the Purchaser and the Selling Stockholder by the
Company for use in connection with the offering of any of the Shares, and all
applicable amendments or supplements thereto, and (C) the term "Preliminary
Prospectus" shall include any preliminary prospectus included in such additional
registration statement prior to the time such additional registration statement
was declared effective.
3. Concurrent with and as a condition to the effectiveness of this
Purchase Agreement Supplement, the Company shall:
(A) pay to the Selling Stockholder, by federal funds wire transfer,
a fee in the amount of $905,000, as consideration for the
extension of the Termination Date (as defined in the Forward
Purchase Agreement);
(B) deliver to the Purchaser, on behalf of the Selling Stockholder,
through the facilities of The Depository Trust Company, the
Initial Predelivered Shares (as defined in the Forward Purchase
Agreement); and
(C) Furnish the Purchaser and the Selling Stockholder with the
following:
(i) A certificate, dated the date hereof, to the effect that
the representations contained in Section 2 of the Purchase
Agreement and in the certificate referred to in Section
4(e) thereof are true and correct as though made at and as
of such time of delivery.
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(ii) The written opinion of Xxxx X. Xxxx, Executive Vice
President, General Counsel and Secretary of Company, dated
the date hereof, of the same tenor as the opinion referred
to in Section 4(c) of the Purchase Agreement, but modified
to apply to this Purchase Agreement Supplement and the
Purchase Agreement, as amended and supplemented by this
Purchase Agreement Supplement, and to the equity forward
confirmation, as amended and restated effective December 1,
1999.
4. The provisions for reimbursement of expenses set forth in Section 5
of the Purchase Agreement shall be applicable to reasonable out-of-pocket
expenses (including reasonable fees and disbursements of counsel) incurred by
the Purchaser and the Selling Stockholder in connection with this Purchase
Agreement Supplement and the amendment and restatement of the equity forward
confirmation, and the maximum amount of such reimbursement shall be increased by
$25,000.
5. The Company shall file copies of this Purchase Agreement Supplement
and of the amended and restated equity forward confirmation as exhibits to the
Registration Statement within five days after the date of this Purchase
Agreement Supplement. Prior to the time that any offer or sale of Shares is
effected under the Registration Statement and, in any event, prior to April 1,
2000, the Company shall amend the Registration Statement (or if counsel for the
Company and counsel for the Purchaser and the Selling Stockholder shall conclude
that a post-effective amendment is not required, amend the Prospectus) to
reflect changes related to this Purchase Agreement Supplement and the amended
and restated equity forward confirmation.
6. Except as expressly modified by this Purchase Agreement Supplement,
the Purchase Agreement shall not be affected hereby and shall remain in full
force and effect.
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If the foregoing Amendment and Supplement to Purchase Agreement
correctly sets forth the understanding among the Company, the Purchaser and the
Selling Stockholder, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the Company, the Purchaser and the Selling Stockholder.
Very truly yours,
CONSECO, INC.
By: /S/ XXXXXX X. XXXX
---------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted and agreed to as of the date first above written:
WARBURG DILLON READ LLC
By: /S/ XXXXXXXXXXX XXXXX
----------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Managing Director
By: /S/ XXXXX XXXXXX
----------------------------
Name: Xxxxx Xxxxxx
Title: Director
UBS AG, LONDON BRANCH
By: /S/ XXXXXX XXXXX
----------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
By: /S/ XXXXXXX XXXXXX
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
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