FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CONSECO, INC.
(Exact name of registrant as specified in its charter)
Indiana 35-1468632
(State of incorporation) (I.R.S. Employer
Identification No.)
11825 North Pennsylvania Street 46032
Carmel, Indiana (Zip Code)
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Preferred Redeemable New York Stock Exchange, Inc.
Increased Dividend Equity
Securities, % PRIDES,
Convertible Preferred Stock
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
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Item 1. Description of Registrant's Securities to be Registered.
- ------- --------------------------------------------------------
The information included under the caption "DESCRIPTION OF PRIDES" in
the Prospectus Supplement dated January 3, 1996, filed in connection with the
Registration Statement on Form S-3 (33- 53095), is incorporated herein by
reference. For purposes of such description, any prospectus filed by the
Registrant pursuant to Rule 424 (b) under the Securities Act shall be deemed to
be incorporated herein by reference.
Item 2. Exhibits.
- ------- ---------
99.1 Form of certificate for the PRIDES.
99.2 Form of Articles of Amendment relating to the PRIDES.
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<PAGE>
SIGNATURE
---------
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, this 11th
day of January, 1996.
CONSECO, INC.
By:/s/ Lawrence W. Inlow
---------------------
Lawrence W. Inlow,
Executive Vice President
and General Counsel
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<PAGE>
LIST OF EXHIBITS TO FORM 8-A OF CONSECO, INC.
---------------------------------------------
Exhibit
- -------
99.1 Copy of a specimen certificate.
99.2 Articles of Amendment.
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EXHIBIT 99.1
CERTIFICATE NUMBER OF
NUMBER SHARES
- -------------% PRIDES(SM), CONVERTIBLE PREFERRED STOCK,
LIQUIDATION PREFERENCE $--------------------- PER SHARE
CUSIP 208464
Incorporated Under the Laws of the State of Indiana
This Certificate is transferable in the City of New York
or in Charlotte, North Carolina
CONSECO, INC.
See reverse for
certain definitions
This certifies that-----------------------------------is the owner of
- ------------------ fully paid and non-assessable shares of-------------------%
PRIDES, Convertible Preferred Stock, of Conseco, Inc. (the "Corporation"),
transferable on the books of the Corporation by the holder hereof, in person or
by duly authorized attorney, upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned and registered by
the Transfer Agent and Registrar.
WITNESS the facsimile signatures of its duly authorized officers.
Dated:-----------------------
-------------------------
President
-------------------------
Secretary
Countersigned and Registered:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
as Transfer Agent and Registrar
By: -----------------------------------
Authorized Signature
[SEAL]
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
CONSECO, INC.
INFORMATION REGARDING THE DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES
AND LIMITATIONS APPLICABLE TO EACH CLASS OF STOCK AND SERIES THEREOF (AND THE
AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE VARIATIONS FOR FUTURE SERIES)
WILL BE FURNISHED WITHOUT CHARGE UPON WRITTEN REQUEST ADDRESSED TO CONSECO,
INC., INVESTOR RELATIONS, 11825 N. PENNSYLVANIA ST., CARMEL, INDIANA 46032.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COMM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - . . . . .Custodian. . . . . .
(Cust) (Minor)
under Uniform Gifts to Minors
Act . . . . . . . . . . . . .
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED,--------------------------------------hereby sell, assign
and transfer unto ----------------------------------------------------------
---------------------------------------------------------------------(please
print or typewrite name and address including postal zip code of
assignee)-------------------------------------Shares represented by the within
Certificate, and do hereby irrevocably constitute and appoint-----------------
- ----------------------------------------Attorney to transfer the said stock on
the books of the within-named Corporation with such full power of substitution
in the premises.
Dated --------------------
--------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate, in every particular, without
alteration or enlargement, or any change whatever.
Signature(s) Guaranteed:
By
<PAGE>
EXHIBIT 99.2
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
CONSECO, INC.
CONSECO, INC. (hereinafter referred to as the "Corporation"), an
Indiana corporation governed by the provisions of the Indiana Business
Corporation Law, as amended, desiring to give notice of corporate action
effectuating amendment of its Articles of Incorporation, as previously restated
and amended (the "Articles of Incorporation"), sets forth the following:
ARTICLE I
THE AMENDMENT
Section 1. Creation of New Article XIV. There is hereby
created a new Article XIV of the Articles of Incorporation the
exact text of which is as follows:
"ARTICLE XIV
Designations, Rights and Preferences of %
PRIDES (SM), Convertible Preferred Stock
The designations, rights, preferences, limitations and restrictions of
the shares of Preferred Stock, without par value, to be designated as % PRIDES
(SM), Convertible Preferred Stock are hereby fixed as follows;
Section 1. Designation and Amount.
-----------------------
The designation of the series of Preferred Stock created by this
Article XIV shall be " % PRIDES (SM), Convertible Preferred Stock, no par value
per share" (the "PRIDES"). The PRIDES are Preferred Redeemable Increased
Dividend Equity Securities (SM). The authorized number of shares constituting
the PRIDES shall be 3,680,000.
(SM)Service mark of Merrill Lynch & Co., Inc.
Section 2. Dividends.
----------
(a) The holders of outstanding shares of PRIDES shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available therefor, cumulative preferential dividends from January , 1996, at
the rate per share of $ per annum, and no more, payable quarterly for each share
of PRIDES, payable in arrears on the 1st day of each February, May, August and
November, respectively (each such date being hereinafter referred to as a
"Dividend Payment Date"), or, if
1
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any Dividend Payment Date is not a business day, then the Dividend Payment Date
shall be the next succeeding business day; provided, however, that, with respect
to any dividend period during which a
redemption occurs, the Corporation may, at its option, declare accrued dividends
to, and pay such dividends on, the redemption date, in which case such dividends
would be payable on the redemption date in cash to the holders of the shares of
PRIDES as of the record date for such dividend payment and such accrued
dividends would not be included in the calculation of the related Call Price (as
hereinafter defined). Each dividend on the shares of PRIDES shall be payable to
holders of record as they appear on the stock register of the Corporation on
such record date, not less than 10 (except as otherwise provided with respect to
the first dividend payment) nor more than 60 days preceding the payment dates
thereof, as shall be fixed by the Board of Directors. The first dividend payment
shall be for the period from January , 1996 to but excluding February 1, 1996
and the first dividend will be payable on February 1, 1996 to holders of record
at the close of business on January , 1996. Dividends (or amounts equal to
accrued and unpaid dividends) payable on shares of PRIDES for any period less
than a full quarterly dividend period will be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days elapsed in any period
less than one month.
Dividends on the shares of PRIDES will accrue whether or not there are
funds legally available for the payment of such dividends and whether or not
such dividends are declared on a daily basis from the previous Dividend Payment
Date. Accumulated unpaid dividends shall not bear interest. Dividends will cease
to accrue in respect of shares of PRIDES on the Mandatory Conversion Date (as
hereinafter defined) or on the date of their earlier conversion or redemption.
The shares of PRIDES will rank on a parity, both as to payment of
dividends and distribution of assets upon liquidation, with the Cumulative
Convertible Preferred Stock and with any future preferred stock issued by the
Corporation (the "Preferred Stock") that by its terms ranks on a parity with the
shares of PRIDES.
(b) As long as any shares of PRIDES are outstanding, no dividends for
any dividend period (other than dividends payable in shares of, or warrants,
rights or options exercisable for or convertible into shares of, Common Stock
(as defined below) or any other capital stock of the Corporation ranking junior
to the shares of PRIDES as to the payment of dividends and the distribution of
assets upon liquidation ("Junior Stock") and cash in lieu of fractional shares
of such Junior Stock in connection with any such dividend) will be paid in cash
or otherwise, nor will any other distribution be made (other than a distribution
payable in Junior Stock and cash in lieu of fractional shares of such Junior
Stock in connection with any such distribution), on any Junior Stock unless: (i)
full dividends on all outstanding shares of Preferred Stock (including the
shares of PRIDES), that does not constitute Junior Stock ("Parity Preferred
Stock") have been paid, or declared and set aside for payment, for all dividend
periods terminating on or prior to the date of such Junior Stock dividend or
distribution payment to the extent such dividends are cumulative; (ii) dividends
in full, in the case of a dividend payment with respect to Junior Stock, for any
Parity Preferred Stock dividend period commencing on or prior to the date of
such Junior Stock dividend payment or, in the case of any other distribution
with respect to Junior Stock, for the current quarterly dividend period, have
been paid, or declared and set aside for payment, on all outstanding shares of
Parity Preferred Stock to the extent such dividends are cumulative; (iii) the
Corporation has paid or set aside all amounts, if any, then or theretofore
required to be paid or set aside for all purchase, retirement, and sinking
funds, if any, for any outstanding shares of Parity Preferred Stock; and (iv)
the Corporation is not in default on any of its obligations to redeem any
outstanding shares of Parity Preferred Stock.
In addition, as long as any shares of PRIDES are outstanding, no shares
of any Junior Stock may be purchased, redeemed, or otherwise acquired by the
Corporation or any of its subsidiaries (except in connection with a
reclassification or exchange of any Junior Stock through the issuance of other
Junior Stock (and cash in lieu of fractional shares of such Junior Stock in
connection therewith) or the purchase, redemption, or other acquisition of any
Junior Stock with any Junior Stock (and cash in lieu of fractional shares of
such Junior Stock in connection therewith)) nor may any funds be set aside or
made available for any sinking fund for the purchase or redemption of any Junior
Stock unless: (i) full dividends on all outstanding shares of Parity Preferred
Stock have been paid, or declared and set aside for payment, for all dividend
periods terminating on or prior to the date of such purchase, redemption or
acquisition to the extent such dividends are cumulative; (ii) the Corporation
has paid or set aside all amounts, if any, then or theretofore required to be
paid or set aside for all purchase, retirement, and sinking funds, if any, for
any outstanding shares of Parity Preferred Stock; and (iii) the Corporation is
not in default on any of its obligations to redeem any outstanding shares of
Parity Preferred Stock.
Subject to the provisions described above, such dividends or other
distributions (payable in cash, property, or Junior Stock) as may be determined
by the Board of Directors may be declared and paid on the shares of any Junior
Stock from time to time and Junior Stock may be purchased, redeemed or otherwise
acquired by the Corporation or any of its subsidiaries from time to time. In the
event of the declaration and payment of any such dividends or other
distributions, the holders of such Junior Stock will be entitled, to the
exclusion of holders of any outstanding Parity Preferred Stock, to share therein
according to their respective interests.
As long as any shares of PRIDES are outstanding, dividends for any
dividend period or other distributions may not be paid on any outstanding shares
of Parity Preferred Stock (other than dividends
or other distributions payable in Junior Stock and cash in lieu of fractional
shares of such Junior Stock in connection therewith), unless either: (a) (i)
full dividends on all outstanding shares of Parity Preferred Stock have been
paid, or declared and set aside for payment, for all dividend periods
terminating on or prior to the date of such Parity Preferred Stock dividend or
distribution payment to the extent such dividends are cumulative; (ii) dividends
in full, in the case of a dividend payment, for any Parity Preferred Stock
dividend period commencing on or prior to the date of such dividend payment or,
in the case of any other distribution, for the current quarterly dividend
period, have been paid, or declared and set aside for payment, on all
outstanding shares of Parity Preferred Stock to the extent such dividends are
cumulative; (iii) the Corporation has paid or set aside all amounts, if any,
then or theretofore required to be paid or set aside for all purchase,
retirement and sinking funds, if any, for any outstanding shares of Parity
Preferred Stock; and (iv) the Corporation is not in default on any of its
obligations to redeem any outstanding shares of Parity Preferred Stock; or (b)
any such dividends are declared and paid pro rata so that the amounts of any
dividends declared and paid per share on outstanding shares of PRIDES and each
other share of such Parity Preferred Stock will in all cases bear to each other
the same ratio that accrued and unpaid dividends (including any accumulation
with respect to unpaid dividends for prior dividend periods, if such dividends
are cumulative) per share of outstanding shares of PRIDES and such other
outstanding shares of Parity Preferred Stock bear to each other.
In addition, as long as any shares of PRIDES are outstanding, the
Corporation may not purchase, redeem or otherwise acquire any Parity Preferred
Stock (except with any Junior Stock and cash in lieu of fractional shares of
such Junior Stock in connection therewith) unless: (i) full dividends on Parity
Preferred Stock have been paid, or declared and set aside for payment, for all
dividend periods terminating on or prior to the date of such Parity Preferred
Stock purchase, redemption or other acquisition payment to the extent such
dividends are cumulative; (ii) the Corporation has paid or set aside all
amounts, if any, then or theretofore required to be paid or set aside for all
purchase, retirement, and sinking funds, if any, for any Parity Preferred Stock;
and (iii) the Corporation is not in default of any of its obligations to redeem
any Parity Preferred Stock.
(c) Any dividend payment made on the shares of PRIDES shall first be
credited against the earliest accrued but unpaid dividend due with respect to
the shares of PRIDES.
(d) All dividends paid with respect to the shares of PRIDES shall be
paid pro rata to the holders entitled thereto.
(e) Holders of the shares of PRIDES shall be entitled to
receive dividends in preference to and in priority over any
dividends upon any shares of the Corporation ranking junior to the shares of
PRIDES as to dividends, but subject to the rights of holders of shares of the
Corporation having a preference and a priority over the payment of dividends on
the shares of PRIDES.
Section 3. Redemption and Conversion.
(a) Mandatory Conversion. On February 1, 2000 (the "Mandatory
Conversion Date"), each outstanding share of PRIDES shall convert automatically
(the "Mandatory Conversion") into shares of Common Stock at the Common
Equivalent Rate (as hereinafter defined) in effect on the Mandatory Conversion
Date and the right to receive an amount in cash equal to all accrued and unpaid
dividends on such share of PRIDES (other than previously declared dividends
payable to a holder of record on a prior date) to the Mandatory Conversion Date,
whether or not declared, out of funds legally available for the payment of
dividends, subject to the right of the Corporation to redeem the shares of
PRIDES on or after February 1, 1999 (the "Initial Redemption Date") and prior to
the Mandatory Conversion Date, as described below, and subject to the conversion
of the shares of PRIDES at the option of the holder at any time prior to the
Mandatory Conversion Date. The Common Equivalent Rate is initially one share of
Common Stock for each share of PRIDES and is subject to adjustment as set forth
below. Dividends on the shares of PRIDES shall cease to accrue and such shares
shall cease to be outstanding on the Mandatory Conversion Date. The Corporation
shall make such arrangements as it deems appropriate for the issuance of
certificates representing shares of Common Stock and for the payment of cash in
respect of such accrued and unpaid dividends, if any, or cash in lieu of
fractional shares, if any, in exchange for and contingent upon surrender of
certificates representing the shares of PRIDES, and the Corporation may defer
the payment of dividends on such shares of Common Stock and the voting thereof
until, and make such payment and voting contingent upon, the surrender of such
certificates representing the shares of PRIDES, provided that the Corporation
shall give the holders of the shares of PRIDES such notice of any such actions
as the Corporation deems appropriate and upon such surrender such holders shall
be entitled to receive such dividends declared and paid on such shares of Common
Stock subsequent to the Mandatory Conversion Date. Amounts payable in cash in
respect of the shares of PRIDES or in respect of such shares of Common Stock
shall not bear interest.
(b) Redemption by the Corporation.
(i) Right to Redeem. Shares of PRIDES are not redeemable
by the Corporation prior to the Initial Redemption
Date. At any time and from time to time on or after
the Initial Redemption Date and prior to the
Mandatory Conversion Date, the Corporation shall have
the right to redeem, in whole or in
part, the outstanding shares of PRIDES. Upon any such
redemption, the Corporation shall deliver to the
holders of shares of PRIDES, in accordance with the
provisions of this Article XIV, in exchange for each
share so redeemed, the greater of (A) a number of
shares of Common Stock equal to the Call Price in
effect on the redemption date, divided by the Current
Market Price (as hereinafter defined) of the Common
Stock determined as of the second trading day
immediately preceding the Notice Date (as hereinafter
defined) or (B) . of a share of Common Stock (subject
to adjustment in the same manner as the Optional
Conversion Rate (as hereinafter defined) is
adjusted). The public announcement of any call for
redemption shall be made prior to, or at the time of,
the mailing of the notice of such call to holders of
shares of PRIDES as described below. If fewer than
all the outstanding shares of PRIDES are to be
redeemed, shares of PRIDES to be redeemed shall be
selected by the Corporation from outstanding shares
of PRIDES not previously redeemed by lot or pro rata
(as nearly as may be practicable) or by any other
method determined by the Board of Directors in its
sole discretion to be equitable. As used in this
subparagraph (b), the term "Notice Date" with respect
to any notice given by the Corporation in connection
with a redemption of shares of PRIDES means the date
on which first occurs either the public announcement
of such redemption or the commencement of mailing of
such notice to the holders of shares of PRIDES.
(ii) Notice of Redemption. The Corporation shall
provide notice of any redemption of the shares of
PRIDES to holders of record of PRIDES to be called
for redemption not less than 15 nor more than 60
days prior to the date fixed for such redemption.
Such notice shall be provided by mailing notice of
such redemption, first class postage prepaid, to
each holder of record of shares of PRIDES to be
redeemed, at such holder's address as it appears on
the stock register of the Corporation; provided,
however, that neither failure to give such notice
nor any defect therein shall affect the validity of
the proceeding for the redemption of any shares of
PRIDES to be redeemed except as to the holders to
whom the Corporation has failed to give said notice
or whose notice was defective.
Each such notice shall state, as appropriate, the
following and may contain such other information as
the Corporation deems advisable:
(A) the redemption date;
(B) that all outstanding shares of PRIDES are to be
redeemed or, in the case of a call for redemption of
fewer than all outstanding shares of PRIDES, the
number of such shares held by such holder to be
redeemed;
(C) the number of shares of Common Stock deliverable
upon redemption of each share of PRIDES to be
redeemed and, if applicable, the Call Price and the
Current Market Price used to calculate such number of
shares of Common Stock;
(D) the place or places where certificates for
such shares are to be surrendered for redemption;
and
(E) that dividends on the shares of PRIDES to be
redeemed shall cease to accrue on such redemption
date (except as otherwise provided herein).
(iii) Deposit of Shares and Funds. The Corporation's
obligation to deliver shares of Common Stock and
provide funds upon redemption in accordance with
this Section 3 shall be deemed fulfilled if, on or
before a redemption date, the Corporation shall
irrevocably deposit, with a bank or trust company,
or an affiliate of a bank or trust company, having
an office or agency in New York City and having a
capital and surplus of at least $50,000,000, or
shall set aside or make other reasonable provision
for the issuance of such number of shares of Common
Stock as are required to be delivered by the
Corporation pursuant to this Section 3 upon the
occurrence of the related redemption (and for the
payment of cash in lieu of the issuance of
fractional share amounts and accrued and unpaid
dividends payable in cash on the shares to be
redeemed as and to the extent provided by this
Section 3). Any interest accrued on such funds
shall be paid to the Corporation from time to time.
Any shares of Common Stock or funds so deposited
and unclaimed at the end of two years from such
redemption date shall be repaid and released to the
Corporation, after which the holder or holders of
such shares of PRIDES so called for redemption
shall look only to the Corporation for delivery of
such shares of Common Stock or funds.
(iv) Surrender of Certificates; Status. Each holder of
shares of PRIDES to be redeemed shall surrender the
certificates evidencing such shares (properly
endorsed or assigned for transfer, if the Board of
Directors shall so require and the notice shall so
state) to the Corporation at the place designated
in the notice of such redemption and shall
thereupon be entitled to receive certificates
evidencing shares of Common Stock and to receive
any funds payable pursuant to this Section 3
following such surrender and following the date of
such redemption. In case fewer than all the shares
represented by any such surrendered certificate are
called for redemption, a new certificate shall be
issued at the expense of the Corporation
representing the unredeemed shares. If such notice
of redemption shall have been given, and if on the
date fixed for redemption, shares of Common Stock
and funds necessary for the redemption shall have
been irrevocably either set aside by the
Corporation separate and apart from its other funds
or assets in trust for the account of the holders
of the shares to be redeemed or converted (and so
as to be and continue to be available therefor) or
deposited with a bank or a trust company or an
affiliate thereof as provided herein or the
Corporation shall have made other reasonable
provision therefor, then, notwithstanding that the
certificates evidencing any shares of PRIDES so
called for redemption or subject to conversion
shall not have been surrendered, the shares
represented thereby so called for redemption shall
be deemed no longer outstanding, dividends with
respect to the shares so called for redemption
shall cease to accrue on the date fixed for
redemption (except that holders of shares of PRIDES
at the close of business on a record date for any
payment of dividends shall be entitled to receive
the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding
the redemption of such shares following such record
date and prior to such Dividend Payment Date) and
all rights with respect to the shares so called for
redemption shall forthwith after such date cease
and terminate, except for the rights of the holders
to receive the shares of Common Stock and funds, if
any, payable pursuant to this Section 3 without
interest upon surrender of their certificates
therefor (unless the Corporation defaults on the
delivery of such shares or the payment of such
funds). Holders of shares of PRIDES that are
redeemed shall not be entitled to receive dividends
declared and paid on such shares of Common Stock, and
such shares of Common Stock shall not be entitled to
vote, until such shares of Common Stock are issued
upon the surrender of the certificates representing
such shares of PRIDES and upon such surrender such
holders shall be entitled to receive such dividends
declared and paid on such shares of Common Stock
subsequent to such redemption date without interest
thereon.
(c) Conversion at Option of Holder. Shares of PRIDES are convertible,
in whole or in part, at the option of the holders thereof, at any time prior to
the Mandatory Conversion Date, unless previously redeemed, into shares of Common
Stock at a rate of . of a share of Common Stock for each share of PRIDES (the
"Optional Conversion Rate") (equivalent to a conversion price of $ per share of
Common Stock), subject to adjustment as set forth below. The right to convert
shares of PRIDES called for redemption shall terminate immediately prior to the
close of business on the redemption date.
Conversion of shares of PRIDES at the option of the holder may be
effected by delivering certificates evidencing such shares, together with
written notice of conversion and a proper assignment of such certificates to the
Corporation or in blank, to the office or agency to be maintained by the
Corporation for that purpose (and, if applicable, cash payment of an amount
equal to the dividend payable on such shares), and otherwise in accordance with
conversion procedures established by the Corporation. Each optional conversion
shall be deemed to have been effected immediately prior to the close of business
on the date on which the foregoing requirements shall have been satisfied. The
conversion shall be at the Optional Conversion Rate in effect at such time and
on such date.
Holders of shares of PRIDES at the close of business on a record date
for any payment of declared dividends shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion of such shares following such record date and
prior to the corresponding Dividend Payment Date. However, shares of PRIDES
surrendered for conversion after the close of business on a record date for any
payment of dividends and before the opening of business on the next succeeding
Dividend Payment Date must be accompanied by payment in cash of an amount equal
to the dividend thereon which is to be paid on such Dividend Payment Date
(unless such shares have been called for redemption on a redemption date between
such record date and such Dividend Payment Date). A holder of shares of PRIDES
called for redemption on February 1, 1999 or any other Dividend Payment Date
thereafter will receive the dividend on such shares payable on that date without
paying an amount equal to such dividend to the
Corporation upon conversion. Except as provided above, upon any optional
conversion of shares of PRIDES, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on converted shares
of PRIDES or for previously declared dividends or distributions on the shares of
Common Stock issued upon such conversion.
(d) Common Equivalent Rate and Optional Conversion Rate Adjustments.
The Common Equivalent Rate and the Optional Conversion Rate shall be each
subject to adjustment from time to time as provided below in this section (d).
(i) If the Corporation shall, after January ,
1996:
(A) pay a stock dividend or make a
distribution with respect to its Common
Stock in shares of such Common Stock,
(B) subdivide or split its outstanding Common
Stock into a greater number of shares,
(C) combine its outstanding shares of Common
Stock into a smaller number of shares, or
(D) issue by reclassification of its shares
of Common Stock any shares of common
stock of the Corporation,
then, in any such event, the Common Equivalent Rate
and the Optional Conversion Rate in effect
immediately prior to such event shall each be
adjusted so that the holder of any shares of PRIDES
shall thereafter be entitled to receive, upon
Mandatory Conversion or upon conversion at the option
of the holder, the number of shares of Common Stock
of the Corporation which such holder would have owned
or been entitled to receive immediately following any
event described above had such shares of PRIDES been
converted immediately prior to such event or any
record date with respect thereto. Such adjustment
shall become effective at the opening of business on
the business day next following the record date for
determination of stockholders entitled to receive
such dividend or distribution, in the case of a
dividend or distribution, and shall become effective
immediately after the effective date, in the case of
a subdivision, split, combination or
reclassification. Such adjustment shall be made
successively.
(ii) If the Corporation shall, after January , 1996,
issue rights or warrants to all holders of its
Common Stock entitling them (for a period not
exceeding 45 days from the date of such issuance)
to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market
Price of the Common Stock, then, in any such event
unless such rights or warrants are issued to
holders of shares of PRIDES on a pro rata basis
with the shares of Common Stock based on the Common
Equivalent Rate on the date immediately preceding
such issuance, the Common Equivalent Rate and
Optional Conversion Rate shall each be adjusted by
multiplying the Common Equivalent Rate and the
Optional Conversion Rate, in effect immediately
prior to the date of issuance of such rights or
warrants, by a fraction, of which the numerator
shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance,
plus the number of additional shares of Common
Stock offered for subscription or purchase pursuant
to such rights or warrants, and of which the
denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such
issuance, plus the number of additional shares of
Common Stock which the aggregate offering price of
the total number of shares of Common Stock so
offered for subscription or purchase pursuant to
such rights or warrants would purchase at such
Current Market Price (determined by multiplying
such total number of shares by the exercise price
of such rights or warrants and dividing the product
so obtained by such Current Market Price). Such
adjustment shall become effective at the opening of
business on the business day next following the
record date for the determination of stockholders
entitled to receive such rights or warrants. To
the extent that shares of Common Stock are not
delivered after the expiration of such rights or
warrants, the Common Equivalent Rate and the
Optional Conversion Rate shall each be readjusted
to the Common Equivalent Rate and the Optional
Conversion Rate which would then be in effect had
the adjustments been made upon the issuance of such
rights or warrants upon the basis of delivery of
only the number of shares of Common Stock actually
delivered. Such adjustment shall be made
successively.
(iii) If the Corporation shall, after January , 1996,
pay a dividend or make a distribution to all
holders of its Common Stock of evidences of its
indebtedness, cash or other assets (including
capital stock of the Corporation but excluding any
cash dividends or distributions, other than
Extraordinary Cash Distributions (as hereinafter
defined) and dividends referred to in subparagraph
(i) above) or shall issue to all holders of its
Common Stock rights or warrants to subscribe for or
purchase any of its securities (other than Rights
issued pursuant to the Rights Plan and those
referred to in subparagraph (ii) above), then
unless such dividend is paid or distribution is
made to each holder of shares of PRIDES on a pro
rata basis with the shares of Common Stock based on
the Common Equivalent Rate on the date immediately
preceding such payment or distribution, in any such
event, the Common Equivalent Rate and the Optional
Conversion Rate shall each be adjusted by
multiplying the Common Equivalent Rate and the
Optional Conversion Rate in effect on the record
date mentioned below, by a fraction of which the
numerator shall be the Current Market Price per
share of the Common Stock on the record date for
the determination of stockholders entitled to
receive such dividend or distribution, and of which
the denominator shall be such Current Market Price
per share of Common Stock less the fair market
value (as determined by the Board of Directors,
whose determination shall be conclusive, and
described in a resolution adopted with respect
thereto) as of such record date of the portion of
the assets or evidences of indebtedness so
distributed or of such subscription rights or
warrants applicable to one share of Common Stock.
Such adjustment shall become effective on the
opening of business on the business day next
following the record date for the determination of
stockholders entitled to receive such dividend or
distribution. Such adjustment shall be made
successively. As used in this section (d), the
term "Extraordinary Cash Distributions" means, with
respect to any cash dividend or distribution paid
on any date, the amount, if any, by which all cash
dividends and cash distributions on the Common
Stock paid during the consecutive 12-month period
ending on and including such date (other than cash
dividends and cash distributions for which an
adjustment to the Common Equivalent Rate and the
Optional Conversion Rate was previously made)
exceeds, on a per share of Common Stock basis, 10% of
the average of the daily Closing Prices of the Common
Stock over such consecutive 12-month period.
(iv) Any shares of Common Stock issuable in payment of a
dividend shall be deemed to have been issued
immediately prior to the close of business on the
record date for such dividend for purposes of
calculating the number of outstanding shares of
Common Stock under subsection (ii) above.
(v) The Corporation shall also be entitled to make
upward adjustments in the Common Equivalent Rate,
the Optional Conversion Rate and the Call Price, as
it in its sole discretion shall determine to be
advisable, in order that any stock dividends,
subdivisions of shares, distribution of rights to
purchase stock or securities, or distribution of
securities convertible into or exchangeable for
stock (or any transaction which could be treated as
any of the foregoing transactions pursuant to
Section 305 of the Internal Revenue Code of 1986,
as amended) made by the Corporation to its
stockholders after January , 1996 shall not be
taxable.
(vi) In any case in which subsection 3(d) shall require
that an adjustment as a result of any event become
effective at the opening of business on the
business day next following a record date and the
date fixed for conversion pursuant to subsection
3(a) or redemption pursuant to subsection 3(b)
occurs after such record date, but before the
occurrence of such event, the Corporation may, in
its sole discretion, elect to defer the following
until after the occurrence of such event: (A)
issuing to the holder of any converted or redeemed
shares of PRIDES the additional shares of Common
Stock issuable upon such conversion or redemption
over the shares of Common Stock issuable before
giving effect to such adjustments and (B) paying to
such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to
subsection 3(g).
(vii) All adjustments to the Common Equivalent Rate and
the Optional Conversion Rate shall be calculated to
the nearest 1/100th of a share of Common Stock. No
adjustment in the Common Equivalent Rate or the
Optional Conversion Rate shall be required unless
such adjustment would require an increase or
decrease of at least one percent therein; provided,
however, that any adjustment which by reason of this
subsection (vii) is not required to be made shall be
carried forward and taken into account in any
subsequent adjustment.
(e) Adjustment for Consolidation or Merger. In case of any
consolidation or merger to which the Corporation is a party (other than a merger
or consolidation in which the Corporation is the surviving or continuing
corporation and in which the Common Stock outstanding immediately prior to the
merger or consolidation remains unchanged), or in case of any sale or transfer
to another corporation of the property of the Corporation as an entirety or
substantially as an entirety, or in case of any statutory exchange of securities
with another corporation (other than in connection with a merger or
acquisition), proper provision shall be made so that each share of PRIDES shall,
after consummation of such transaction, be subject to (i) conversion at the
option of the holder into the kind and amount of securities, cash or other
property receivable upon consummation of such transaction by a holder of the
number of shares of Common Stock into which such share of PRIDES might have been
converted immediately prior to consummation of such transaction, (ii) conversion
on the Mandatory Conversion Date into the kind and amount of securities, cash or
other property receivable upon consummation of such securities, cash or other
property receivable upon consummation of such transaction by a holder of the
number of shares of Common Stock into which such share of PRIDES would have
converted if the conversion on the Mandatory Conversion Date had occurred
immediately prior to the date of consummation of such transaction, plus the
right to receive cash in an amount equal to all accrued and unpaid dividends on
such shares of PRIDES (other than previously declared dividends payable to a
holder of record as of a prior date), (iii) redemption on any redemption date in
exchange for the kind and amount of securities, cash or other property
receivable upon consummation of such transaction by a holder of the number of
shares of Common Stock that would have been issuable at the Call Price in effect
on such redemption date upon a redemption of such share immediately prior to
consummation of such transaction, assuming that, if the Notice Date for such
redemption is not prior to such transaction, the Notice Date had been the date
of such transaction and assuming in each case that such holder of Common Stock
failed to exercise rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon consummation of such
transaction (provided that if the kind or amount of securities, cash or other
property receivable upon consummation of such transaction is not the same for
each non-electing share, then the kind and amount of securities, cash or other
property receivable upon consummation of such transaction for each non-electing
share shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). The kind and amount of securities into or
for which the shares of PRIDES shall be convertible or redeemable after
consummation of
such transaction shall be subject to adjustment as described in the immediately
preceding paragraph following the date of consummation of such transaction. The
Corporation may not become a party to any such transaction unless the terms
thereof are consistent with the foregoing or consistent with clause (iii) of
Section 7(c).
For purposes of the immediately preceding paragraph and subsection 3(g)
(iii), any sale or transfer to another corporation of property of the
Corporation which did not account for at least 50% of the consolidated net
income of the Corporation for its most recent fiscal year ending prior to the
consummation of such transaction shall not in any event be deemed to be a sale
or transfer of the property of the Corporation as an entirety or substantially
as an entirety.
(f) Notice of Adjustments. Whenever the Common Equivalent Rate and
Optional Conversion Rate are adjusted as herein provided, the Corporation shall:
(i) forthwith compute the adjusted Common Equivalent Rate and Optional
Conversion Rate in accordance herewith and prepare a certificate signed by an
officer of the Corporation setting forth the adjusted Common Equivalent Rate and
the Optional Conversion Rate, the method of calculation thereof in reasonable
detail and the facts requiring such adjustment and upon which such adjustment is
based, which certificate shall be conclusive, final and binding evidence of the
correctness of the adjustment, and file such certificate forthwith with the
transfer agent for the shares of PRIDES and the Common Stock; and
(ii) make a prompt public announcement and mail a notice to the holders
of the outstanding shares of PRIDES stating that the Common Equivalent Rate and
the Optional Conversion Rate have been adjusted, the facts requiring such
adjustment and upon which such adjustment is based and setting forth the
adjusted Common Equivalent Rate and Optional Conversion Rate, such notice to be
mailed at or prior to the time the Corporation mails an interim statement to its
stockholders covering the fiscal quarter during which the facts requiring such
adjustment occurred, but in any event within 45 days of the end of such fiscal
quarter.
(g) Notices. In case, at any time while any of the shares of
PRIDES are outstanding,
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock, excluding any cash dividends; or
(ii) the Corporation shall authorize the issuance to all holders of its
Common Stock of rights or warrants to subscribe for or purchase shares or its
Common Stock or of any other subscription rights or warrants; or
(iii) the Corporation shall authorize any reclassification of its
Common Stock (other than a subdivision or combination thereof) or any
consolidation or merger to which the Corporation is a party and for which
approval of any stockholders of the Corporation is required (except for a merger
of the Corporation into one of its subsidiaries solely for the purpose of
changing the corporate domicile of the Corporation to another state of the
United States and in connection with which there is no substantive change in the
rights or privileges of any securities of the Corporation other than changes
resulting from differences in the corporate statutes of the then existing and
the new state of domicile), or the sale or transfer to another corporation of
the property of the Corporation as an entirety or substantially as an entirety;
or
(iv) the Corporation shall authorize the voluntary or
involuntary dissolution, liquidation or winding up of the
Corporation;
then the Corporation shall cause to be filed at each office or agency maintained
for the purpose of conversion of the shares of PRIDES, and shall cause to be
mailed to the holders of shares of PRIDES at their last addresses as they shall
appear on the stock register, at least 10 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event that
more than one date is specified), a notice stating (A) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or (B) the date on which any such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property (including cash),
if any, deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. The failure to give or receive
the notice required by this subsection (g) or any defect therein shall not
affect the legality or validity of such dividend, distribution, right or warrant
or other action.
(h) Effect of Conversions and Redemptions. The person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon any conversion or redemption shall be deemed to have
become on the date of any such conversion or redemption the holder or holders of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Corporation shall be
closed shall constitute the person or persons in whose name or names the
certificate or certificates for such
shares are to be issued as the record holder or holders thereof for all purposes
at the opening of business on the next succeeding day on which such stock
transfer books are open.
(i) No Fractional Shares. No fractional shares or script representing
fractional shares of Common Stock shall be issued upon the redemption or
conversion of any shares of PRIDES. In lieu of any fractional share otherwise
issuable in respect of the aggregate number of shares of PRIDES of any holder
which are redeemed or converted on any redemption date or upon Mandatory
Conversion or any optional conversion, such holder shall be entitled to receive
an amount in cash (computed to the nearest cent) equal to the same fraction of
the (i) Current Market Price as of the second trading day immediately preceding
the Notice Date, in the case of redemption, or (ii) Closing Price of the Common
Stock determined (A) as of the fifth Trading Date immediately preceding the
Mandatory Conversion Date, in the case of Mandatory Conversion, or (B) as of the
second Trading Date immediately preceding the effective date of conversion, in
the case of an optional conversion by a holder. If more than one share shall be
surrendered for conversion or redemption at one time by or for the same holder,
the number of full shares of Common Stock issuable upon conversion thereof shall
be computed on the basis of the aggregate number of shares of PRIDES so
surrendered or redeemed.
(j) Reissuance. Shares of PRIDES that have been issued and reacquired
in any manner, including shares purchased, exchanged, redeemed or converted,
shall not be reissued as part of PRIDES and shall (upon compliance with any
applicable provisions of the laws of the State of Indiana) have the status of
authorized and unissued shares of the Preferred Stock undesignated as to series
and may be redesignated and reissued as part of any series of Preferred Stock.
(k) Definitions. As used in this Article XIV:
(i) the term "business day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the State of Indiana
are authorized or obligated by law or executive order to close or are closed
because of a banking moratorium or otherwise;
(ii) the term "Call Price" of each share of PRIDES shall be
the sum of (x) $ on and after February 1, 1999, to and including April 30, 1999,
$ on and after May 1, 1999, to and including July 31, 1999, $ on and after
August 1, 1999, to and including October 31, 1999, $ on and after November 1,
1999, through February 1, 2000 and (y) all accrued and unpaid dividends thereon
to but not including the redemption date (other than previously declared
dividends payable to a holder of record as of a prior date);
(iii) the term "Closing Price" on any day shall mean the last
reported sales price on such day or, in case no such sale takes place on such
day, the average of the reported closing high and low quotations, in each case
on the New York Stock Exchange or, if the Common Stock is not listed on the New
York Stock Exchange, on the Nasdaq National Market, or, if the Common Stock is
not listed on the Nasdaq National Market, the average of the high bid and
low-asked quotations of the Common Stock in the over-the-counter market on the
day in question as reported by the National Quotation Bureau Incorporated, or a
similarly generally accepted reporting service, or, if no such quotations are
available, the fair market value of the Common Stock as determined by any New
York Stock Exchange member firm selected from time to time by the Board of
Directors for such purpose;
(iv) the term "Current Market Price" per share of Common Stock
at any date shall be deemed to be the lesser of (x) the average of the daily
Closing Prices for the fifteen consecutive Trading Dates ending on and including
the date in question or (y) the Closing Price of the Common Stock for such date
of determination; provided, however, if any event that results in an adjustment
of the Common Equivalent Rate occurs during such fifteen-day period, the Current
Market Price as determined pursuant to the foregoing shall be appropriately
adjusted to reflect the occurrence of such event; and
(v) the term "Trading Date" shall mean a date on which the New
York Stock Exchange (or any successor thereto) is open for the transaction of
business.
(l) Payment of Taxes. The Corporation shall pay any and all
documentary, stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on the redemption or conversion of
shares of PRIDES pursuant to this Section 3; provided, however, that the
Corporation shall not be required to pay any tax which may be payable in respect
of any registration of transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the registered holder of shares of
PRIDES redeemed or converted or to be redeemed or converted, and no such issue
or delivery shall be made unless and until the person requesting such issue has
paid to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(m) Reservation of Common Stock. The Corporation shall at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock and/or its issued Common Stock held in
its treasury, for the purpose of effecting any Mandatory Conversion of the
shares of PRIDES or any conversion of the shares of PRIDES at the option of
the holder, the full number of shares of Common Stock then deliverable upon any
such conversion of all outstanding shares of PRIDES.
Section 4. Liquidation Rights.
(a) In the event of the liquidation, dissolution, or winding up of the
business of the Corporation, whether voluntary or involuntary, the holders of
shares of PRIDES then outstanding, after payment or provision for payment of the
debts and other liabilities of the Corporation and the payment or provision for
payment of any distribution on any shares of the Corporation having a preference
and a priority over the shares of PRIDES on liquidation, and before any
distribution to the holders of Junior Stock, shall be entitled to be paid out of
the assets of the Corporation available for distribution to its stockholders an
amount per share of PRIDES in cash equal to the sum of (i) $ plus (ii) all
accrued and unpaid dividends thereon. In the event the assets of the Corporation
available for distribution to the holders of the shares of PRIDES upon any
dissolution, liquidation or winding up of the Corporation shall be insufficient
to pay in full the liquidation payments payable to the holders of outstanding
shares of PRIDES and of all other series of Parity Preferred Stock, the holders
of shares of PRIDES and of all other series of Parity Preferred Stock shall
share ratably in such distribution of assets in proportion to the amount which
would be payable on such distribution if the amounts to which the holders of
outstanding shares of PRIDES and the holders of outstanding shares of such
Parity Preferred Stock were paid in full. Except as provided in this Section 4,
holders of PRIDES shall not be entitled to any distribution in the event of
liquidation, dissolution or winding up of the affairs of the Corporation.
(b) For the purposes of this Section 4, none of the following shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Corporation:
(i) the sale, lease, transfer or exchange of all
or substantially all of the assets of the
Corporation; or
(ii) the consolidation or merger of the
Corporation with one or more other
corporations (whether or not the Corporation
is the corporation surviving such
consolidation or merger).
Section 5. Definition. As used in this Article XIV, the
term "Common Stock" shall mean any stock of any class of the Corporation which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and which is not subject to redemption by the Corporation. However,
shares of Common Stock issuable upon conversion of shares of PRIDES shall
include only shares of the class designated as Common stock as of January ,
1996, or shares of the Corporation of any class or classes resulting from any
reclassification or reclassification thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and which
are not subject to redemption by the Corporation; provided, however, that, if at
any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from such reclassification bears
to the total number of shares of all classes resulting from all such
reclassification.
Section 6. No Preemptive Rights. The holders of shares of PRIDES shall
have no preemptive rights, including preemptive rights with respect to any
shares of capital stock or other securities of the Corporation convertible into
or carrying rights or options to purchase any such shares.
Section 7. Voting Rights.
(a) The holders of shares of PRIDES shall have the right with the
holders of Common Stock to vote in the election of directors and upon each other
matter coming before any meeting of the stockholders on the basis of 4/5 of a
vote for each share held. The holders of shares of PRIDES and the holders of
Common stock shall vote together as one class except as otherwise set forth
herein or as otherwise provided by law or elsewhere in the Articles of
Incorporation.
(b) If at any time dividends payable on the shares of PRIDES or any
other series of Preferred Stock are in arrears and unpaid in an aggregate amount
equal to or exceeding the aggregate amount of dividends payable thereon for six
quarterly dividend periods, or if any other series of Preferred Stock shall be
entitled for any other reason to exercise voting rights, separate from the
Common Stock, to elect any Directors of the Corporation ("Preferred Stock
Directors"), the holders of the shares of PRIDES, voting separately as a class
with the holders of all other series of Preferred Stock upon which like voting
rights have been conferred and are exercisable, with each share of PRIDES
entitled to vote on this and other matters upon which Preferred Stock votes as a
group, shall have the right to vote for the election of two Preferred Stock
Directors of the Corporation, such Directors to be in addition to the number of
Directors constituting the Board of Directors immediately prior to the accrual
of such right. Such right of the holders of shares of PRIDES to elect two
Preferred Stock Directors shall, when vested, continue until all dividends in
arrears on the shares of PRIDES and such other series of Preferred Stock shall
have been paid in full and the right of any other series of
Preferred Stock to exercise voting rights, separate from the Common Stock, to
elect Preferred Stock Directors shall terminate or have terminated and, when so
paid, and any such termination occurs or has occurred, such right of the holders
of shares of PRIDES to elect two Preferred Stock Directors separately as a class
shall cease, subject always to the same provisions for the vesting of such right
of the holders of the shares of PRIDES to elect two Preferred Stock Directors in
the case of future dividend defaults.
The term of office of each Director elected pursuant to the preceding
paragraph shall terminate on the earlier of (i) the next annual meeting of
stockholders at which a successor shall have been elected and qualified or (ii)
the termination of the right of the holders of shares of PRIDES and such other
series of Preferred Stock to vote for Directors pursuant to the preceding
paragraph. Vacancies on the Board of Directors resulting from the death,
resignation or other cause of any such Director shall be filled exclusively by
no less than two-thirds of the remaining Directors and the Director so elected
shall hold office until a successor is elected and qualified.
(c) For as long as any shares of PRIDES remain outstanding, the
affirmative consent of the holders of at least two-thirds thereof actually
voting (voting separately as a class) given in person or by proxy, at any annual
meeting or special meeting of the shareholders called for such purpose, shall be
necessary to (i) amend, alter or repeal any of the provisions of the Articles of
Incorporation of the Corporation which would adversely affect the powers,
preferences or rights of the holders of the shares of PRIDES then outstanding or
reduce the minimum time required for any notice to which holders of shares of
PRIDES then outstanding may be entitled; provided, however, that any such
amendment, alteration or repeal that would authorize, create or increase the
authorized amount of any additional shares of Junior Stock or any other shares
of stock (whether or not already authorized) ranking on a parity with the shares
of PRIDES shall be deemed not to adversely affect such powers, preferences or
rights and shall not be subject to approval by the holders of shares of PRIDES;
and provided further that clause (i) shall not be applicable to the amendment,
alteration or repeal of any provisions of the Articles of Incorporation of the
Corporation approved at a meeting of the shareholders the record date of which
is prior to the issuance of any shares of PRIDES; (ii) authorize or create, or
increase the authorized amount of, any capital stock, or any security
convertible into capital stock, of any class ranking senior to PRIDES as to
payment of dividends or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation; or (iii) merge or consolidate with or into any
other corporation, unless each holder of the shares of PRIDES immediately
preceding such merger or consolidation shall have the right either to (A)
receive or continue to hold in the resulting corporation the same number of
shares, with substantially the same rights and preferences, as correspond to the
shares of PRIDES so held or (B) convert into shares of Common Stock at the
Common Equivalent Rate in effect on the date immediately preceding the
announcement of any such merger or consolidation.
There is no limitation on the issuance by the Corporation of Parity
Preferred Stock or of any class ranking junior to the shares of PRIDES.
Notwithstanding the provisions summarized in the preceding two
paragraphs, however, no such approval described therein of the holders of the
shares of PRIDES shall be required to authorize an increase in the number of
authorized shares of Preferred Stock or if, at or prior to the time when such
amendment, alteration, or repeal is to take effect or when the authorization,
creation or increase of any such senior stock or security is to be made, or when
such consolidation or merger, liquidation, dissolution or winding up is to take
effect, as the case may be, provision is made for the redemption of all shares
of PRIDES at the time outstanding."
ARTICLE II
MANNER OF ADOPTION AND VOTE
Section 1. Action by Directors. The Board of Directors of the
Corporation, on December , 1995, duly adopted a resolution that the provisions
and terms of the Articles of Incorporation be amended as set forth in Article I
above.
Section 2. Shareholder Vote Not Required. The Amendments set forth in
Article I above were adopted by the Board of Directors without shareholder
action and shareholder action was not required.
ARTICLE III
STATEMENT OF CHANGES WITH RESPECT TO AUTHORIZED SHARES
Section 1. Authorized Stock Before The Amendments. Prior to these
Articles of Amendment, the authorized capital stock of the corporation consisted
of 520,000,000 shares divided into two classes: 500,000,000 shares of Common
stock, without par value, and 20,000,000 shares of Preferred Stock, without par
value.
Section 2. Changes Made By The Amendments. These Articles of
Amendment do not increase or decrease the number of authorized
shares of capital stock of the Corporation.
<PAGE>
IN WITNESS WHEREOF, the undersigned officer executes these Articles of
Amendment to the Articles of Incorporation of Conseco, Inc., this ---
day of January, 1996.
CONSECO, INC.
By:
---------------------
Stephen C. Hilbert,
Chairman of the Board
This instrument was prepared by Karl W. Kindig, Attorney at Law,
11825 N. Pennsylvania Street, Carmel, Indiana 46032.
