FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF
MERGER (the "FIRST AMENDMENT") is made and entered as of the
7th day of November, 1996 by and between CONSECO, INC., an
Indiana corporation ("CONSECO"), and TRANSPORT HOLDINGS
INC., a Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, Conseco and the Company are parties to an
Agreement and Plan of Merger, dated as of September 25, 1996
(the "MERGER AGREEMENT");
WHEREAS, Conseco and the Company wish to amend
certain provisions of the Merger Agreement regarding the
exchange offer to be made by Conseco pursuant to the
provisions of the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual covenants and agreements hereinafter
set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. DEFINED TERMS. Terms used herein with their
initial letters capitalized and not otherwise defined herein
(including those terms so used and not defined in the
recitals above) shall have the respective meanings given
such terms in the Merger Agreement.
2. AMENDMENT OF SECTION 4.19 OF THE MERGER
AGREEMENT. Section 4.19 of the Merger Agreement is hereby
amended to read in its entirety as follows:
4.19 EXCHANGE OFFER. Conseco shall offer to
exchange, as of the Effective Time, shares of
Conseco Common Stock and cash for the outstanding
Series A Notes and Series B Notes as provided in
this Section 4.19. The number of shares of
Conseco Common Stock offered in exchange for each
$1,000 in principal amount of Series A Notes or
Series B Notes, as applicable, shall be equal to
the product of (i) the quotient (rounded to the
nearest ten-thousandth) of (A) $1,000 divided by
(B) the conversion price of the Series A Notes or
Series B Notes, as applicable, multiplied by (ii)
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the "Exchange Ratio". As used in this Section
4.19, "Exchange Ratio" shall be equal to the
quotient (rounded to the nearest ten-thousandth)
of (A) $70.00 divided by (B) the Conseco Share
Price. Notwithstanding the foregoing, no
fractional shares of Conseco Common Stock shall be
issued pursuant to such exchange and, in lieu
thereof, Conseco shall make cash payments in the
manner contemplated by Section 1.9(f) of this
Agreement. The amount of cash payable by Conseco
pursuant to such exchange offer (in addition to
amounts payable in lieu of fractional shares of
Conseco Common Stock) in respect of each $1,000
principal amount of Series A Notes or Series B
Notes, as applicable, shall be equal to the sum of
(i) the "Conversion Payment" (as defined below)
and (ii) an amount equal to the accrued and unpaid
interest on such $1,000 principal amount of Series
A Notes or Series B Notes, as applicable, through
and including the Closing Date. The "Conversion
Payment" in respect of each $1,000 in principal
amount of Series A Notes or Series B Notes, as
applicable, shall be an amount equal to the net
present value of the interest that would have
accrued thereon at the rate of 6% per annum from
and after the Effective Time and through and
including the fourth anniversary of the Effective
Time, based on a discount rate of 7.5% per annum
and assuming semi-annual interest payments on
January 31 and July 31 of each year and that the
remainder of interest would be paid on such fourth
anniversary. Conseco agrees to take such action
as is necessary for the making and consummation of
such exchange and the issuance by it of the shares
of Conseco Common Stock pursuant to such offer,
including filing of a registration statement with
the SEC with respect to the shares of Conseco
Common Stock to be issued in exchange for the
Series A Notes and the Series B Notes, as
applicable. At the Company's option, such
registration shall be either included in the Form
S-4 or filed as a separate registration statement.
If a separate registration statement is filed, the
provisions of this Agreement relating to the Form
S-4 will apply to such separate registration
statement. In addition, Conseco agrees that if
any of the shares of Conseco Common Stock issued
in exchange for the Series A Notes and the Series
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B Notes, as applicable, shall not be immediately
freely tradeable by the holder thereof, then, at
the request of the holder, Conseco shall, as
promptly as practicable, at Conseco's option,
either (i) acquire such shares directly from such
holder at the then current market price, or (ii)
file and have declared effective a registration
statement on Form S-3 (or other appropriate form)
with the SEC to register such shares for resale by
such holder and use commercially reasonable
efforts to keep such registration statement
effective until such time as such shares become
freely tradeable. For purposes of the preceding
sentence, shares which may be sold at such time
pursuant to Rule 144 (as promulgated by the SEC)
shall be considered "freely tradeable."
3. AMENDMENT OF SECTION 6.2(C) OF THE MERGER
AGREEMENT. Section 6.2(c) of the Merger Agreement is hereby
amended to read in its entirety as follows:
(c) EXCHANGE OFFER. Holders of at least 90% of
the aggregate principal amount of Series A and
Series B Notes shall have accepted the offer made
by Conseco pursuant to Section 4.19 to exchange
such Series A and Series B Notes for shares of
Conseco Common Stock and cash as of the Effective
Time.
4. COUNTERPARTS. This First Amendment may be
executed in one or more counterparts, each of which will be
deemed an original and all of which together will constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have
executed this First Amendment as of the date and year first
above written.
CONSECO:
CONSECO, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President and
General Counsel
COMPANY:
TRANSPORT HOLDINGS INC.
By: Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: President
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