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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
December 23, 1994
CONSECO, INC.
State of Incorporation:
Indiana
Commission File IRS Employer Id.
No. 1-9250 No. 35-1468632
Address of Principal Executive Offices:
11825 North Pennsylvania Street
Carmel, Indiana 46032
Telephone No.
(317) 817-6100
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CONSECO, INC. AND SUBSIDIARIES
ITEM 5. OTHER EVENTS.
On December 23, 1994, Conseco, Inc. ("Conseco") completed the sale of its
40 percent equity interest in Western National Corporation ("WNC") to American
General Corporation for $274.4 million in cash, or $11.00 for each of the
24,947,500 WNC shares owned by Conseco. Conseco expects to recognize a nominal
after-tax gain from the sale. Net cash proceeds from the sale (after taxes and
expenses) will be used for general corporate purposes, including repurchases
of Conseco common stock.
As disclosed in Conseco's Form 8-K dated February 15, 1994, Conseco had
previously sold a 60 percent interest in WNC. After the sale of its 40 percent
equity interest on December 23, 1994, Conseco no longer has an equity interest
in WNC.
In connection with this transaction, Conseco agreed to a number of
revisions to its insurance services agreement with WNC. The revisions include
a reduction, effective January 1, 1995, in the investment services annual
management fees charged to WNC from the current rate (based on progressively
lower rates at increasing levels of the investment portfolio, such rates for
the current portfolio level average about 18 basis points and for additional
amounts in the portfolio would be 10 basis points) to a flat rate of 10 basis
points. The revisions also permit the termination of the insurance services
agreement as early as July 1996, without penalty, as opposed to the prior
10-year agreement, which was terminable after five years with penalty.
ITEM 7(c). EXHIBIT.
10.35 Stock Purchase Agreement dated December 2, 1994, between
American General Corporation and Conseco Investment Holding
Company.
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CONSECO, INC. AND SUBSIDIARIES
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: January 9, 1995
CONSECO, INC.
By: /S/ROLLIN M. DICK
--------------------
Rollin M. Dick
Executive Vice President
and Chief Financial Officer
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of this 2nd day of December, 1994 (the
"Agreement"), by and between American General Corporation, a Texas corporation
("Buyer"), and Conseco Investment Holding Company, a Delaware corporation
("Seller").
This Agreement sets forth the terms and conditions upon which Seller will
sell to Buyer and Buyer will purchase from Seller 24,947,500 shares of common
stock, par value $.001 per share (the "Common Stock"), of Western National
Corporation, a Delaware corporation (the "Company") (such 24,947,500 shares
being referred to herein as the "Shares").
The definitions of certain initially capitalized terms used herein are set
forth in Annex A hereto.
In consideration of the mutual agreements contained herein, the parties
agree as follows:
1. Upon the terms and subject to the conditions of this Agreement, and
in reliance on the representations, warranties and covenants contained herein,
at the Closing described in Section 2 hereof, Seller will sell, assign,
transfer and convey to Buyer, and Buyer will purchase from Seller, all of the
Shares. In consideration of the aforesaid sale, Buyer will pay to Seller an
aggregate purchase price of $274,422,500 ($11.00 per Share) in immediately
available funds (the "Purchase Price").
2. The Closing shall be held at the office of Skadden, Arps, Slate,
Meagher & Flom, 919 Third Avenue, New York, New York, at 10:00 a.m. on the
first business day following the date on which all of the conditions set forth
in Sections 8 and 9 to each party's obligations hereunder have been satisfied
or waived; or at such other place or time or both as the parties mutually may
agree in writing. The date on which the Closing actually occurs is hereinafter
referred to as the "Closing Date."
3. At the Closing, (a) Seller will deliver to Buyer (i) certificates
representing the Shares duly endorsed for transfer in blank or accompanied by
stock powers duly executed in blank, in proper form for transfer, with all
necessary stock transfer and other documentary stamps affixed and (ii) any
other documents necessary to transfer to the Buyer good and valid title to the
Shares free and clear of all Liens and (b) Buyer will deliver to Seller the
Purchase Price through a wire transfer to a bank account in a New York bank
designated by Seller at least three business days prior to the Closing.
4. Seller hereby represents and warrants to Buyer that:
(a) Seller is a corporation duly organized, validly existing and in
good standing under the laws of Delaware and has all requisite power and
authority to own its assets and to carry on its business as now being conducted
and as presently proposed to be conducted.
(b) Seller has the corporate power and authority to execute, deliver
and perform this Agreement. Such execution, delivery and performance have been
duly authorized by all necessary action on the part of Seller and will not
contravene the organizational documents of Seller or conflict with, result in
a breach of, or entitle any party (with due notice or lapse of time or both)
to terminate, accelerate or call a default with respect to, any agreement or
instrument to which Seller is a party or by which Seller or its assets are
bound. The approval of the shareholders of the Seller is not required in
connection with the execution, delivery and performance of this Agreement or
the consummation of the transactions contemplated hereby and thereby. The
execution, delivery and performance by Seller of this Agreement will not result
in any violation by such Seller of any law, rule or regulation applicable to
Seller. Seller is not a party to, nor subject to or bound by, any judgment,
injunction or decree of any Governmental Entity which may restrict or interfere
with the performance of this Agreement. This Agreement is a valid and binding
obligation of Seller enforceable against Seller in accordance with its terms.
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(c) No consent or waiver of any Governmental Entity is required for
the execution, delivery and performance of this Agreement other than (i) the
filing of this Agreement with and the approval of such by the Insurance
Commissioner of the State of Texas, and (ii) pursuant to the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the "HSR Act"). There are no consents or
waiver of any party to any Contract to which Seller is a party or by which it
is bound required for the execution, delivery and performance by Seller of this
Agreement which has not been obtained.
(d) Seller is the record and beneficial owner of, and has, and will
convey to Buyer at the Closing, good and valid title to the Shares free and
clear of all Liens. Other than as contemplated by this Agreement, Seller is
not a party to, or bound by, any agreement, instrument, proxy or understanding
restricting the transfer of the Shares.
(e) There is no action, suit, investigation or proceeding pending
or, to the knowledge of Seller, threatened against Seller or any of its
properties or rights by or before any Governmental Entity which questions the
validity of this Agreement or any action taken or to be taken pursuant hereto.
(f) No representation or warranty made to Buyer by Seller hereunder,
and no statement contained in the Filings based upon written information
furnished to the Company by Seller, or contained in any certificate, document
or instrument delivered by Seller pursuant hereto, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading.
5. Buyer hereby represents and warrants to Seller that:
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of Texas and has all requisite power and authority
to own its assets and to carry on its business as now being conducted and as
presently proposed to be conducted.
(b) Buyer has the corporate power and authority to execute, deliver
and perform this Agreement. Such execution, delivery and performance have been
duly authorized by all necessary action on the part of Buyer and will not
contravene the organizational documents of Buyer or conflict with, result in
a breach of, or entitle any party (with due notice or lapse of time or both)
to terminate, accelerate or call a default with respect to, any agreement or
instrument to which Buyer is a party or by which Buyer or its assets are bound.
The execution, delivery and performance by Buyer of this Agreement will not
result in any violation by Buyer of any law, rule or regulation applicable to
Buyer. Buyer is not a party to, nor subject to or bound by, any judgment,
injunction or decree of any Governmental Entity which may restrict or interfere
with the performance of this Agreement. This Agreement is a valid and binding
obligation of Buyer enforceable against Buyer in accordance with its terms.
(c) No consent or waiver of any Governmental Entity is required for
the execution, delivery and performance of this Agreement other than (i) the
filing of this Agreement with and the approval of such by the Insurance
Commissioner of the State of Texas and (ii) pursuant to the HSR Act. No
consent or waiver of any party to any Contract to which Buyer is a party or by
which it is bound is required for the execution, delivery and performance by
Buyer of this Agreement.
(d) There is no action, suit, investigation or proceeding pending
or, to the knowledge of Buyer, threatened against Buyer or any of its
properties or rights by or before any Governmental Entity which questions the
validity of this Agreement or any action taken or to be taken pursuant hereto.
(e) No representation or warranty made to Seller by Buyer hereunder
or in any certificate, documents or instrument delivered by Buyer pursuant
hereto, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances in which they were made, not misleading.
(f) Buyer will acquire the Shares for its own account and not with
a view to or for sale in connection with any distribution thereof, and Buyer
will not sell or otherwise dispose of the Shares, except in each case in
compliance with the Securities Act of 1933 and the rules and regulations
thereunder.
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6. Seller covenants and agrees with Buyer that, between the date hereof
and the Closing Date:
(a) Seller will perform all acts to be performed by it pursuant to
this Agreement and will refrain from taking or omitting to take any action that
would cause its representations and warranties to be inaccurate as of the date
hereof or the Closing Date or that in any way would delay or prevent the
consummation of the transactions contemplated hereby. Seller will use its best
efforts to satisfy or cause to be satisfied all the conditions to the
obligations of Seller and Buyer set forth in Sections 8 and 9 hereof.
(b) Seller will, as promptly as practicable, make any required
governmental filings and comply with any applicable governmental waiting
periods, notification or other procedures required to be taken by it in
connection with the transactions contemplated by this Agreement. In addition,
Seller will use commercially reasonable efforts to make all filings, furnish
all information and obtain such consents as may be required by any third party
or Governmental Entity properly asserting jurisdiction.
7. Buyer covenants and agrees with Seller that between the date hereof
and the Closing Date:
(a) Buyer will perform all acts to be performed by it pursuant to
this Agreement and will refrain from taking or omitting to take any action that
would cause its representations and warranties to be inaccurate as of the date
hereof or the Closing Date or that in any way would delay or prevent the
consummation of the transactions contemplated hereby. Buyer will use its best
efforts to satisfy or cause to be satisfied all the conditions to the
obligations of Seller and Buyer set forth in Sections 8 and 9 hereof.
(b) Buyer will, as promptly as practicable, make any required
governmental filings, including a filing pursuant to the HSR Act and as
required by the Insurance Commissioner of the State of Texas, and comply with
any applicable governmental waiting periods or notification or other procedures
required to be complied with by it in connection with the transactions
contemplated by this Agreement. In addition, Buyer will make all filings,
furnish all information and obtain such consents as may be required by any
third party or Governmental Entity properly asserting jurisdiction.
8. The obligation of Seller to sell the Shares is subject to the
satisfaction or waiver by Seller of the following conditions, on or before the
Closing Date:
(a) All representations and warranties of Buyer made in or pursuant
to this Agreement will be true and correct in all material respects as of the
date made and at and as of the Closing Date, with the same force and effect as
though made at and as of the Closing Date.
(b) Buyer will have performed, observed and complied in all material
respects with all the obligations and conditions required by this Agreement to
be performed, observed or complied with by it at or prior to the Closing Date.
(c) There will be no suit, action or other proceeding pending or
threatened before any Governmental Entity which Seller believes, in good faith
and based upon an opinion of counsel, could result in the restraint,
prohibition, set aside or invalidation of the consummation of this Agreement
or the transactions contemplated hereby or substantial damages in connection
therewith.
(d) All required governmental filings will have been made, all
applicable waiting periods, including those under the HSR Act will have run,
and all requisite approvals of Governmental Entities for the consummation of
the transactions contemplated hereby will have been granted.
9. The obligation of Buyer to purchase the Shares is subject to the
satisfaction or waiver by Buyer of the following conditions on or before the
Closing Date:
(a) All representations and warranties of Seller made in or pursuant
to this Agreement will be true and correct in all material respects as of the
date made and at and as of the Closing Date, with the same force and effect as
though made at and as of the Closing Date.
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(b) Seller will have performed, observed and complied in all
material respects with all the obligations, agreements and conditions required
by this Agreement to be performed or complied with by it at or prior to the
Closing Date.
(c) There will be no suit, action or other proceeding pending or
threatened before any Governmental Entity which Buyer believes could result in
the restraint, prohibition, set aside or invalidation of the consummation of
this Agreement or the transactions contemplated hereby or substantial damages
in connection therewith.
(d) All required governmental filings will have been made, all
applicable waiting periods, including those under the HSR Act will have run,
and all requisite approval of Governmental Entities, including the final,
unappealable approval of the Insurance Commissioner of the State of Texas, for
the consummation of the transactions contemplated hereby will have been
granted.
(e) Messrs. Rodney D. Moore and Hobart C. Buppert II shall have
resigned as directors of the Company.
10. In the event of any change in the number of shares of Common Stock
outstanding by recapitalization, declaration of a stock split or combination
or payment of a stock dividend or the like, the number of Shares to be
transferred to the Buyer and the per Share payments to be made to Seller shall
be adjusted appropriately. The Shares shall include all dividends or
distributions in respect of the Shares.
11. Seller and Buyer agree that each of them will consult with the other
before issuing any press release or otherwise making any public statements with
respect to the transactions contemplated hereby.
12. The parties hereto acknowledge that damages would be an inadequate
remedy for a breach of this Agreement and that the obligations of the parties
hereto shall be specifically enforceable, in addition to any other remedy which
may be available at law or in equity.
13. Seller and Buyer, in connection with the transactions contemplated
herein, severally agree to indemnify and hold the other harmless from and
against any and all claims, liabilities or obligations with respect to any
brokerage fees, commissions or finders' fees asserted by any person on the
basis of any act or statement alleged to have been made by such party or its
affiliates.
14. Each party hereto shall pay its own expenses incurred in connection
with this Agreement.
15. All representations, warranties and agreements made by Seller and by
Buyer in this Agreement shall survive the Closing hereunder and any
investigation at any time made by or on behalf of either party hereto.
16. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto. Neither party to this Agreement may assign any of its rights
or obligations under this Agreement without the prior consent of the other
party except that the rights and obligations of Buyer may be assigned by Buyer
to any of its wholly owned subsidiaries but no such transfer shall relieve
Buyer of its obligations hereunder if such transferee does not perform such
obligations.
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17. All notices, claims, requests, demands, and other communications
hereunder will be in writing and will be deemed to have been duly given upon
receipt as follows:
(a) If to Buyer, to:
Robert M. Devlin
Vice Chairman
American General Corporation
2929 Allen Parkway
Houston, Texas 77019
Telephone: (713) 522-1111
Fax: (713) 831-1300
with copies to:
Jon P. Newton
Senior Vice President and General Counsel
American General Corporation
2929 Allen Parkway
Houston, Texas 77019
Telephone: (713) 522-1111
Fax: (713) 831-1266
and
Morris J. Kramer
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Telephone: (212) 735-3000
Fax: (212) 735-2000
(b) If to Seller, to
Conseco Investment Holding Company
1209 Orange Street
Wilmington, DE 19801
Attn: Mark A. Ferrucci
with a copy to:
Lawrence W. Inlow
Conseco, Inc.
11825 N. Pennsylvania Street
Carmel, IN 46032
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above.
18. This Agreement may be executed in two or more counterparts, each of
which will be deemed to be an original but all of which together will
constitute one and the same instrument.
19. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under principles of conflicts of law.
20. This Agreement may be terminated at any time prior to the Closing
Date (i) by mutual consent of Buyer and Seller; or (ii) by Buyer or Seller if,
without fault of, and other than by reason of a matter within the control of,
the terminating party, the Closing shall not have occurred on or prior to
January 31, 1995. In the event of any termination permitted by the preceding
sentence, neither party hereto will have liability pursuant to this Agreement,
except for liabilities arising under Sections 13 and 14 and except for
liabilities resulting from willful breach.
21. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Agreement shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
22. This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, whether oral or written, between the
parties hereto with respect to the subject matter hereof.<PAGE>
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by duly authorized officers of Buyer and Seller as of the day and year first
written above.
AMERICAN GENERAL CORPORATION
By: HAROLD S. HOOK
Name: Harold S. Hook
Title:
CONSECO INVESTMENT HOLDING COMPANY
By: WILLIAM T. DEVANNEY, JR.
Name: William T. Devanney, Jr.
Title: Vice President
<PAGE>
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GUARANTY
CONSECO, INC., an Indiana corporation and the holder of all of the
outstanding capital stock of Conseco Investment Holding Company ("CIHC"),
hereby unconditionally guarantees the performance of all of CIHC's obligations
pursuant to the foregoing agreement.
CONSECO, INC.
By: STEPHEN C. HILBERT
Name: Stephen C. Hilbert
Title: Chairman of the Board
December 2, 1994<PAGE>
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ANNEX A
Definitions
"Contracts" means all agreements or understandings, whether written or
oral, including, without limitation, all mortgages, indentures, notes,
guarantees, leases, purchase agreements and sale agreements.
"Filings" means all registration statements under the Securities Act of
1933 and all reports, proxy statements and other information under the
Securities Exchange Act of 1934, as amended, filed by the Company with the
Securities Exchange Commission.
"Governmental Entity" means any agency, administrative division or
department (or administrative subdivision), arbitrator, commission, regulatory
authority, taxing or administrative authority, court or other judicial body,
legislature, audit group or procuring office of the government of the United
States or of any state, city, municipality, county or town thereof, or of any
foreign jurisdiction, including the employees or agents of any thereof.
"Liens" means all mortgages, pledges, security interests, liens, charges,
options, conditional sales agreements, claims, restrictions, covenants,
easements, rights of way, title defects or other encumbrances of any nature
whatsoever.
