-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, o1150IYRtE6PiVFCrDmvOwgNFucp7weuwTgGo9pkamNa5NFAi7alyvEIXSTHSm51 AL/G46ME7nj1A9caRnrgsA== 0000005103-94-000086.txt : 19941220 0000005103-94-000086.hdr.sgml : 19941220 ACCESSION NUMBER: 0000005103-94-000086 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19941212 DATE AS OF CHANGE: 19941219 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WESTERN NATIONAL CORP CENTRAL INDEX KEY: 0000913202 STANDARD INDUSTRIAL CLASSIFICATION: 6311 IRS NUMBER: 752502064 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-43413 FILM NUMBER: 94564452 BUSINESS ADDRESS: STREET 1: 5555 SAN FELIPE ROAD STE 900 CITY: HOUSTON STATE: TX ZIP: 77056 BUSINESS PHONE: 7138887800 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN GENERAL CORP /TX/ CENTRAL INDEX KEY: 0000005103 STANDARD INDUSTRIAL CLASSIFICATION: 6311 IRS NUMBER: 740483432 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2929 ALLEN PKWY CITY: HOUSTON STATE: TX ZIP: 77019 BUSINESS PHONE: 7135221111 SC 13D 1 13D FILING SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Western National Corporation (Name of Issuer) Common Stock (Title of Class of Securities) 958845109 (CUSIP Number) Peter V. Tuters, Senior Vice President and Chief Investment Officer American General Corporation, 2929 Allen Parkway, Houston TX 77019 (713) 522-1111 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 2, 1994 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box . Check the following box if a fee is being paid with the statement X is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class. See Rule 13d-7.) (Continued on following pages) Page 1 of 8 Pages 13D CUSIP No. 958845109 Page 2 of 8 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AMERICAN GENERAL CORPORATION IRS #74-0483432 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (b) 3 SEC USE ONLY 4 SOURCE OF FUNDS WC, OO 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION Texas NUMBER OF 7 SOLE VOTING POWER SHARES 0 BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 24,947,500 EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON 10 SHARED DISPOSITIVE POWER WITH 24,947,500 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 24,947,500 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES X 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 40% 14 TYPE OF REPORTING PERSON HC, CO 13D CUSIP No. 958845109 Page 3 of 8 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AGC LIFE INSURANCE COMPANY IRS #76-0030921 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (b) 3 SEC USE ONLY 4 SOURCE OF FUNDS WC, OO 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION Missouri NUMBER OF 7 SOLE VOTING POWER SHARES 0 BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 24,947,500 EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON 10 SHARED DISPOSITIVE POWER WITH 24,947,500 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 24,947,500 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES X 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 40% 14 TYPE OF REPORTING PERSON IC Page 4 of 8 Pages Item 1. Security and Issuer This statement relates to the Common Stock of Western National Corporation ("Western"), located at 5555 San Felipe Road, Suite 900, Houston, Texas 77056. Item 2. Identity and Background. (a)-(c) American General Corporation ("American General"), located at 2929 Allen Parkway, Houston, Texas 77019, is a general business corporation incorporated in the State of Texas on February 26, 1980, and is the successor to American General Insurance Company, a Texas fire and casualty insurer incorporated in 1926. AGC Life Insurance Company ("AGC Life"), located at American General Center, Nashville, Tennessee, 37250, is an insurance company incorporated in the State of Missouri on September 1, 1982. A list of the executive officers and directors of American General is attached hereto as Exhibit 1 in response to Item 2 (a)-(c). A list of the executive officers and directors of AGC Life is attached hereto as Exhibit 2 in response to Item 2 (a)-(c). (d)-(e) Neither American General or AGC Life or, to the best knowledge of American General or AGC Life, any of the executive officers or directors of American General or AGC Life have during the last five years (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Each of the executive officers and directors of American General is a citizen of the United States of America, with the exception of the Senior Vice President and Chief Investment Officer who is a citizen of Canada. Each of the executive officers and directors of AGC Life is a citizen of the United States of America, with the exception of the Vice President and Chief Investment Officer who is a citizen of Canada. Item 3. Source and Amount of Funds or Other Consideration (1) The acquisition consideration to be paid by AGC Life at the closing of the proposed acquisition of 24,947,500 shares or 40% of Western's issued and outstanding common stock is $264,422,500 cash Page 5 of 8 Pages (or $11.00 per share). The source of the cash consideration for AGC Life would be: (i) a $65 million cash contribution from American General; (ii) $133.5 million of cash dividends to be received by AGC Life on or after December 15, 1994 from its subsidiaries American General Life and Accident Insurance Company, Gulf Life Insurance Company and American General Life Insurance Company; and (iii) subject to the approval of the Missouri Department of Insurance, a loan for the remaining $75,922,500 from American General pursuant to the American General Corporation Liquidity Program. (2) The nature (cash) and amount ($11.00 per share or, in the aggregate, $274,422,500) of the consideration were arrived at through arms' length negotiations. Item 4. Purpose of Transaction American General and AGC Life intend to acquire the common stock for investment and not with the purpose nor with the effect of changing or influencing the control of Western, nor in connection with or as a participant in any transaction having such purpose or effect. American General and Western executed a Shareholder's Agreement dated December 2, 1994 (see Item 7., Exhibit 4) which is a four-year agreement that, among other things, limits American General's and AGC Life's ability to take certain actions which could influence control of Western, provides for American General and AGC Life to either vote its shares in the election of directors pro rata with the votes cast by other holders, or vote for the slate of directors nominated by Western's board; limits the form of share dispositions by American General and AGC Life; and limits additional purchases of shares by American General and AGC Life to not more than 20% per year, with a total position limit of 79%. American General and AGC Life also have been granted certain registration rights with respect to the common stock and have the optional right to name two directors to the Western board. Item 5. Interest in Securities of the Issuer (a) American General may be deemed to beneficially own, through its wholly owned subsidiary, AGC Life, 24,947,500 shares or 40% of Western's issued and outstanding common stock, upon completion of the proposed acquisition contemplated by the execution of the Stock Purchase Agreement dated December 2, 1994 between American General and Conseco Investment Holding Company (see Item 7., Exhibit 3) and the execution of the Shareholder's Agreement dated December 2, 1994 between American General and Western (see Item 7., Exhibit 4). Pursuant to the Stock Purchase Agreement, such proposed acquisition may be terminated by either party if the closing shall not have occurred by January 31, 1995. Page 6 of 8 Pages A poll of the executive officers and directors of American General and AGC Life indicates that, with the exception of Mr. Robert M. Devlin (executive officer and director of American General) and Mr. Brady F. Carruth (director of American General), none of them owns any of Western's common stock. Mr. Devlin has advised American General that he beneficially owns directly an aggregate of 10,000 shares or approximately .0002% of the 62,300,000 issued and outstanding shares of Western's common. Mr. Carruth has advised American General that he beneficially owns 1,000 shares or approximately .00002% of the 62,300,000 issued and outstanding shares of Western's common stock. (b) Upon completion of the acquisition, American General and AGC Life may be deemed to have shared power to vote or to direct the vote and to dispose or to direct the disposition of the securities reported herein, subject to the terms of the Shareholder's Agreement (see Item 7., Exhibit 4). American General and AGC Life know of no other person who will have the power to vote or to direct the vote and to dispose or to direct the disposition of the securities reported herein. Mr. Devlin and Mr. Carruth have advised American General that they have the sole power to vote or to direct the vote and to dispose or to direct the disposition of their respective shares reported in Item 5(a) above. (c) Upon completion of the acquisition, American General's wholly owned subsidiary AGC Life will own 24,947,500 shares of Western's common stock pursuant to the terms of the Stock Purchase Agreement dated December 2, 1994. (d) American General and AGC Life know of no other person who has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any of the securities reported herein. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings of Relationships with Respect to Securities of the Issuer Stock Purchase Agreement dated December 2, 1994 between American General Corporation and Conseco Investment Holding Company (see Item 7., Exhibit 3). See response to Item 4. Shareholder's Agreement dated December 2, 1994 between Western National Corporation and American General Corporation (see Item 7., Exhibit 4). See response to Item 4. Page 7 of 8 Pages Item 7. Material to be Filed as Exhibits Exhibit 1 Executive Officer and Director List for American General in response to Item 2(a)-(c). Exhibit 2 Executive Officer and Director List for AGC Life in response to Item 2 (a)-(c). Exhibit 3 Stock Purchase Agreement dated December 2, 1994 between American General Corporation and Conseco Investment Holding Company in response to Item 5(a) and Item 6. Exhibit 4 Shareholder's Agreement dated December 2, 1994 between Western National Corporation and American General Corporation in response to Item 5(a) and Item 6. Page 8 of 8 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. AMERICAN GENERAL CORPORATION, on behalf of American General Corporation and its wholly- owned subsidiary AGC Life Insurance Company Date: December 12, 1994 BY: /s/ PETER V. TUTERS Peter V. Tuters Senior Vice President and Chief Investment Officer EX-1 2 EXHIBIT EXHIBIT 1 DIRECTORS AND EXECUTIVE OFFICERS OF AMERICAN GENERAL CORPORATION The following information is provided with regard to the directors and executive officers of American General Corporation, a holding company. The business address for each of the directors and executive officers of American General is 2929 Allen Parkway, Houston, Texas 77019, unless otherwise indicated. Present Principal Name and Business Address Occupation or Employment DIRECTORS J. Evans Attwell Partner, Vinson & Elkins L.L.P. Vinson & Elkins L.L.P. (attorneys). 2500 First City Tower 1001 Fannin Houston, Texas 77002-6760 Brady F. Carruth President & Chief Executive Officer, Gulf Coast Capital Corporation Gulf Coast Capital Corporation. 8633 Antelope Drive Houston, Texas 77063 W. Lipscomb Davis, Jr. Partner, Hillsboro Enterprises Hillsboro Enterprises (investments). 201 4th Ave. North, Suite 1390 Nashville, Tennessee 37219 Robert M. Devlin Vice Chairman, American General Corporation. Harold S. Hook Chairman and Chief Executive Officer, American General Corporation. Larry D. Horner Chairman, Pacific USA Holdings Corp. Pacific USA Holdings Corp. 110 East 59th Street, Fifth Floor 110 East 59th Street, 5th Floor (investment banking). New York, New York 10002 Richard J.V. Johnson Chairman and Publisher, The Houston The Houston Chronicle Chronicle (newspaper publishing). 801 Texas Avenue Houston, Texas 77002 Present Principal Name and Business Address Occupation or Employment DIRECTORS (continued) Robert E. Smittcamp President and Chief Executive Officer, Lyons-Magnus Co., Inc. Lyons-Magnus Co., Inc. (food processor) 1636 South Second Street Fresno, California 93702 James R. Tuerff President, American General Corporation. EXECUTIVE OFFICERS (In addition to those Executive Officers who are also Directors) Michael G. Atnip Senior Vice President - Special Projects, American General Corporation. Jon P. Newton Senior Vice President and General Counsel, American General Corporation. Nicholas R. Rasmussen Senior Vice President - Corporate Development, American General Corporation. Gary D. Reddick Senior Vice President - Administration, American General Corporation. Peter V. Tuters Senior Vice President and Chief Investment Officer, American General Corporation. Austin P. Young Senior Vice President and Chief Financial Officer, American General Corporation. James L. Gleaves Vice President and Treasurer, American General Corporation. Pamela J. Penny Vice President and Controller, American General Corporation. John A. Adkins Associate General Counsel and Corporate Secretary, American General Corporation. EX-2 3 EXHIBIT EXHIBIT 2 DIRECTORS AND EXECUTIVE OFFICERS OF AGC LIFE INSURANCE COMPANY The following information is provided with regard to the directors and executive officers of AGC Life Insurance Company ("AGC Life"), a life insurance company. The business address for each of the directors and executive officers of AGC Life is American General Center, Nashville, Tennessee 37250, unless otherwise indicated. Present Principal Name and Business Address Occupation or Employment DIRECTORS James S. D'Agostino, Jr. President and Chief Executive Officer, AGC Life. Robert M. Devlin Vice Chairman, American General American General Corporation Corporation. 2929 Allen Parkway Houston, Texas 77019 Marcus C. Gibbs Senior Vice President - Customer Service, AGC Life. Harold S. Hook Chairman and Chief Executive Officer, American General Corporation American General Corporation. 2929 Allen Parkway Houston, Texas 77019 Leo Lebos, Jr. Senior Vice President and Chief Actuary, AGC Life. Allen A. McCampbell, Jr. Senior Vice President - Management Services, AGC Life. Donald J. Tasser Senior Vice President and Chief Marketing Officer, AGC Life. James R. Tuerff President, American General Corporation. American General Corporation 2929 Allen Parkway Houston, Texas 77019 Peter V. Tuters Senior Vice President and Chief Investment American General Corproation Officer, American General Corporation. 2929 Allen Parkway Houston, Texas 77019 Present Principal Name and Business Address Occupation or Employment EXECUTIVE OFFICERS (In addition to those Executive Officers who are also Directors) Kent E. Barrett Senior Vice President, Controller and Treasurer, AGC Life. Rex H. Roberts Associate General Counsel and Secretary, AGC Life. EX-3 4 EXHIBIT 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 con- sideration 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 pres- ently proposed to be conducted. (b) Seller has the corporate power and authority to execute, deliver and perform this Agreement. Such execu- tion, 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 con- flict 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 execu- tion, 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. (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, 2 or bound by, any agreement, instrument, proxy or understand- ing restricting the transfer of the Shares. (e) There is no action, suit, investigation or proceeding pending or, to the knowledge of Seller, threat- ened 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 pres- ently proposed to be conducted. (b) Buyer has the corporate power and authority to execute, deliver and perform this Agreement. Such execu- tion, 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 Agree- ment. This Agreement is a valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms. 3 (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 Agree- ment. (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 instru- ment 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. 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 represen- tations 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 4 governmental waiting periods, notification or other proce- dures 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 represen- tations 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 gov- ernmental waiting periods or notification or other proce- dures 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 condi- tions, 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 condi- tions required by this Agreement to be performed, observed or complied with by it at or prior to the Closing Date. 5 (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 transac- tions 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. (b) Seller will have performed, observed and complied in all material respects with all the obligations, agree- ments and conditions required by this Agreement to be per- formed 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 Agree- ment 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 ap- proval 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. 6 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. 7 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. 8 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. 9 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:/s/ Harold S. Hook Name: Harold S. Hook Title: Chairman and CEO CONSECO INVESTMENT HOLDING COMPANY By:/s/ William T. Devanney, Jr. Name: William T. Devanney, Jr. Title: Vice President 10 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:/s/ Stephen C. Hilbert Name: Stephen C. Hilbert Title: Chairman of the Board December 2, 1994 11 ANNEX A Definitions "Contracts" means all agreements or understandings, whether written or oral, including, without limi- tation, 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 whatso- ever. 12 EX-4 5 EXHIBIT EXHIBIT 4 SHAREHOLDER'S AGREEMENT This Agreement (the "Shareholder's Agreement"), entered into on this 2nd day of December, 1994, by and among Western National Corporation (the "Company"), a Delaware corporation, and American General Corporation ("Stockholder"), a Texas corporation, W I T N E S S E T H: WHEREAS, Stockholder will on the date hereof enter into an agreement with Conseco Investment Holding Company ("Conseco") to acquire 24,947,500 shares of Common Stock, par value $.001 per share (the "Common Stock") of the Company, representing approximately 40% of the outstanding Common Stock (such 24,947,500 shares, together with any other shares of voting stock of the Company that may be acquired by Stockholder during the term of this Shareholder's Agreement, hereinafter referred to as the "Shares"); and WHEREAS, Company and Stockholder wish to establish certain rights and obligations of each to the other with respect to the Shares and their ownership by Stockholder; NOW, THEREFORE, the parties hereto hereby agree as follows: ARTICLE I AGREEMENTS RESPECTING THE SHARES Section 1.1 Sale of Shares. (a) Stockholder hereby agrees that, until the earlier of (i) January 1, 1999 or (ii) the date on which Michael J. Poulos ceases, as a result of death, disability, or resignation, to serve as Chief Executive Officer of the Company (such date being herein referred to in either event as the "Termination Date"), it will not, dispose of, or enter into an agreement providing for the disposal of, all or any portion of the Shares without the prior approval of the Company's Board of Directors (which approval will not be unreasonably withheld). (b) Notwithstanding the limitation in Section 1.1(a) hereof, nothing herein shall prevent Stockholder from selling all or any portion of the Shares (i) in a public offering intended to result in widespread distribution; (ii) in a transaction under Rule 144 under the Securities Act of 1933 (the "Securities Act") in accordance with the volume limitations set forth therein; (iii) in privately negotiated block trades; provided that the purchaser, together with its "affiliates" (as such term is used in Rule 12b-2 under the Securities Exchange Act of 1934 (the "Exchange Act")) and any members of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act), does not, after giving effect to such transaction, own "beneficially" (within the meaning of the Exchange Act) more than 4.9% of the outstanding Common Stock; (iv) by Stockholder to an entity that is a direct or indirect majority controlled subsidiary of Stockholder if, but only if, either (x) the Shares to be held by such subsidiary do not constitute a substantial part of such subsidiary's assets, and such subsidiary enters into a shareholders agreement with the Company on terms substantially consistent with this Shareholder's Agreement, or (y) Stockholder and such entity agree, for the benefit of the Company, that if such entity ceases to be an entity that is a direct or indirect majority controlled subsidiary of Stockholder, then such entity shall immediately transfer all shares of Common Stock owned by such entity to Stockholder or another entity that is then a direct or indirect majority controlled subsidiary of Stockholder; or (v) pursuant to a tender offer or exchange offer by the Company, a tender offer or exchange offer by a third party which has been approved by the Board of Directors of the Company or a merger or other business combination involving the Company which, in each case, is not solicited by the Stockholder and in which the Stockholder is treated on substantially comparable terms with other holders of the Common Stock; and (vi) subject to the Company's right of first refusal as set forth in Section 1.10, in response to, and pursuant to the terms of, any tender offer or exchange offer by a third party (other than an offer referred to in clause (v) of this Section 1.1(b)). Section 1.2 Certain Rights and Limitations. (a) The Stockholder agrees that, until the Termination Date, whether or not the Stockholder shall continue to own any voting securities of the Company, the Stockholder shall not, and shall cause each of its "affiliates" (as such term is used in Rule 12b-2 under the Exchange Act) not to, unless and until such shall have been specifically invited in writing by the Company, directly or indirectly (i) except as permitted by Section 1.2(b) below, acquire or make any proposal to acquire any voting securities of the Company or any securities that are exercisable, exchangeable, or convertible into voting securities of the Company or seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets or securities, dissolution, liquidation, restructuring, recapitalization or similar transaction of or involving the Company or any of its subsidiaries, (ii) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect to the voting of any securities of the Company, (iii) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company, (iv) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (v) initiate or propose to the Company a shareholder proposal within the meaning of Rule 14a-8 under the Exchange Act, (vi) have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, assist or encourage, any other persons in connection with any of the foregoing, or make any equity investment in any other person that engages in, or offers or proposes to engage in, any of the foregoing (it being understood that, without limiting the generality of the foregoing, the Stockholder shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company or any of its subsidiaries); (vii) make any publicly disclosed proposal regarding any of the foregoing; or (viii) call a shareholders meeting pursuant to the bylaw provision contemplated by Section 1.9(b) hereof. The Stockholder also agrees during such period not to make any proposal, statement or inquiry or disclose any intention, plan or arrangement, whether written or oral, inconsistent with the foregoing, or request the Company, directly or indirectly, to amend, waive or terminate any provision of this paragraph (including this sentence). (b) Notwithstanding Section 1.2(a), Stockholder may (i) acquire securities by way of stock dividends or other distributions payable to holders of Common Stock of the Company generally; and (ii) acquire in any one twelve- month period a number of shares not in excess of 20% of the total number of shares of Common Stock outstanding as of the date such determination is made; provided, however, that prior to the Termination Date, Stockholder and its affiliates shall not in any event own "beneficially" (with the meaning of the Exchange Act) in excess of 79% of the total number of shares of Common Stock outstanding as of the date of any such determination. Section 1.3 Voting of Shares. (a) The Stockholder hereby agrees that, until the Termination Date, at any meeting of the stockholders of the Company, however called, and in any action by consent of the stockholders of the Company, the Stockholder shall vote the Shares and any other voting securities of the Company with respect to the election of directors, at Stockholder's option, either (i) in the same proportion as the votes cast by the holders of all other voting securities of the Company, other than any votes cast by an Affiliated Holder or (ii) in favor of the slate of directors proposed by the Board of Directors of the Company; provided, however, that the Stockholder shall be permitted to vote the Shares, in its discretion, for the election as directors of individuals nominated by it in accordance with the terms of Article III hereof. For purposes of this Section 1.3(a), the term "Affiliated Holder" means any "person" or "group" (as such terms are defined for purposes of the provisions of Section 13(d) of the Exchange Act) that, together with its affiliates, is the beneficial owner, as determined pursuant to Rule 13d-3 under the Exchange Act, of securities representing 10% or more of the total voting power of all voting securities of the Company, exclusive of the Shares, outstanding and entitled to vote at the record date for any vote or consent with respect to which such determination is made. (b) The Stockholder hereby covenants and agrees that, except as contemplated by this Agreement, the Stockholder shall not enter into any voting agreement or grant a proxy or power of attorney with respect to the Shares that is inconsistent with this Agreement. Section 1.4 Binding on Affiliates, etc. Stockholder agrees that the limitations applicable to Stockholder hereunder shall be equally applicable to each person or entity controlled by Stockholder, to the same extent as if each such person or entity were named as Stockholder hereunder. Section 1.5 Filing of Form 13D. Stockholder agrees that it will file an initial 13D representing that the acquisition of the Shares is for "investment -3- purposes" and not for the purpose of acquiring or influencing control of the Company. Section 1.6 Resolution under Section 203. The Company hereby represents and warrants that its Board of Directors has duly adopted the resolution attached hereto as Exhibit A prior to entering into this Agreement. Section 1.7 Shareholder's Rights Plan. The Company agrees that so long as Stockholder (together with its majority owned subsidiaries) does not, through the sale or other disposition of its Shares, reduce its beneficial ownership of the Company's Common Stock below 40% (a "Disqualifying Disposition"), the Company will not adopt a shareholder's rights plan that would limit or adversely affect the rights of Stockholder. Notwithstanding termination of this Agreement by the occurrence of the Termination Date or otherwise, the provisions of this Section shall survive and continue in effect unless and until a Disqualifying Disposition occurs, unless this Agreement is terminated pursuant to an instrument in writing expressly terminating this Section. Section 1.8 Legend. Stockholder agrees that (i) it is acquiring the Shares for investment purposes for its own account, and will not effect a distribution thereof in violation of the registration provisions of the Securities Act; and (ii) that the Shares will bear the following legend: "The shares represented by this certificate (the "Shares") have not been registered under the Securities Act of 1933, and no sale, transfer or other disposition may be made of the Shares unless they have been so registered or Western National Corporation has been furnished evidence satisfactory to it that such registration is not required. The Shares are also subject to certain restrictions on transfer contained in a Shareholder's Agreement to which Western National Corporation and the registered holder are parties, a copy of which is on file with the Secretary of Western National Corporation." Section 1.9 Amendment to Articles and Bylaws. (a) The Company agrees to submit to its shareholders for consideration at its 1995 Annual Meeting, and to recommend the adoption of, an amendment (the "Amendment") eliminating the classification of its board of directors as provided in Article Ninth of its Certificate of Incorporation. Each current director whose term extends beyond the 1995 Annual Meeting, by his approval of this Agreement at a meeting held for such purpose, hereby agrees, subject to the approval of the Amendment by the shareholders of the Company, to take such action as may be necessary to limit his current term to the 1996 Annual Meeting and until his successor is elected and qualified. (b) The Company agrees to amend its Bylaws to permit any holder of 35% or more of the outstanding Common Stock of the Company to call a special meeting of shareholders of the Company for the purpose of removing and/or electing directors, and not to delete or limit such bylaw at any time prior to -4- the occurrence of a Disqualifying Disposition as defined in Section 1.7 hereof. Notwithstanding the termination of this Agreement by the occurrence of the Termination Date or otherwise, the provisions of this Section shall survive and continue in effect unless and until a Disqualifying Disposition occurs, unless this Agreement is terminated pursuant to an instrument in writing expressly terminating this Section. Section 1.10 Right of First Refusal (a) Prior to making any sale or exchange of Shares pursuant to Section 1.1(b)(vi) in response to a tender offer or exchange offer (an "Offer"), the Stockholder shall give the Company the opportunity to purchase such Shares in the following manner: (i) The Stockholder shall give notice (the "Tender Notice") to the Company in writing of its intention to sell or exchange Shares in response to an Offer no later than four calendar days prior to the latest time (including any extensions) by which Shares must be tendered in order to be accepted pursuant to such Offer, specifying the number of Shares proposed to be tendered by the Stockholder and the purchase price per Share specified in the Offer at the time of the Tender Notice. (ii) If the Tender Notice is given, the Company shall have the right, exercisable by giving notice to the Stockholder at least two calendar days prior to the latest time after delivery of the Tender Notice by which Shares must be tendered in order to be accepted pursuant to the Offer (including any extensions thereof), to purchase all, but not part, of the Shares specified in the Tender Notice (an "Exercise Notice"). The purchase price to be paid by the Company for any Shares purchased by it pursuant to this Section 1.10 shall be the final price per Share specified in the Offer on the Last Tender Date (as defined below). If the purchase price per Share specified in the Offer includes any property other than cash (the "Offer Noncash Property"), the purchase price at which the Company shall be entitled to purchase all, but not part, of the Shares specified in the Tender Notice shall be (u) the amount of cash per Share specified in such Offer (the "Cash Portion"), plus (v) an amount of cash per Share equal to the value of the Offer Noncash Property per Share (the "Cash Value of Offer Noncash Property"). If the Company exercises its right of first refusal by giving an Exercise Notice, the closing of the purchase of the Shares with respect to which such right has been exercised (the "Closing") shall take place at 3:00 p.m., New York City time (or, if earlier, two hours before the latest time by which shares must be tendered in order to be accepted pursuant to the Offer), on the last day on which shares must be tendered in order to be accepted pursuant to the Offer (including any extensions thereof) (the "Last Tender Date"), and the Company shall pay the purchase price for the Shares specified above as follows: (w) the payment of the Cash Portion shall occur at the Closing on the Last Tender Date, and (x) the payment of the Cash Value of Offer Noncash Property (if any) shall occur promptly after the determination of the value of the Offer Noncash Property (if any) but in no event -5- later than 20 calendar days after the delivery of the Tender Notice (or, if later, at the Closing). The value of any Offer Noncash Property shall be determined by a nationally recognized investment banking firm selected jointly by the Company and the Stockholder or, in the event the Company and the Stockholder are unable to agree on the selection of such investment banking firm, by a nationally recognized investment banking firm to be selected jointly, as promptly as reasonably practicable, by a nationally recognized investment banking firm selected by the Company and a nationally recognized investment banking firm selected by the Stockholder. (b) The Stockholder shall be entitled to rescind its Tender Notice at any time prior to the Last Tender Date by notice in writing to the Company. If the Stockholder rescinds its Tender Notice pursuant to the immediately preceding sentence, the Company's Exercise Notice with respect to such offer shall be deemed to be immediately rescinded. (c) If the Company does not exercise its right of first refusal set forth in this Section 1.10 within the time specified for such exercise by giving an Exercise Notice, then the Stockholder shall be free to accept for all its Shares the Offer with respect to which the Tender Notice was given. ARTICLE II SECURITIES ACT REGISTRATION Section 2.1 Demand Registration. (a) Stockholder may require the Company to register Shares proposed to be sold by it and/or any Holder under the Securities Act. Such a registration must relate to Shares with an aggregate fair market value of at least $50 million on the date of the Demand or, if less, all of the Shares owned by all Holders controlled by Stockholder. Each registration of shares pursuant to this Section 2.1 (a "Demand Registration") shall be for a firm commitment underwritten public offering through underwriter(s) managed by a manager (the "Manager") selected by Stockholder, provided such manager is reasonably acceptable to the Company (an "Underwriting"). The Company may select one additional underwriter to serve as co-managing underwriter (but not lead underwriter), provided that such underwriter is reasonably acceptable to Stockholder. (b) As used in this Article II: "Seller" means a Holder selling or proposing to sell Shares pursuant to any registration statement contemplated by this Section; "Registration Statement" means a registration statement under the Securities Act; "Prospectus" means a prospectus included in a registration statement or relating to an offer and sale of Shares registered under the Securities Act; and "Holder" means Stockholder, any subsidiary of Stockholder and any other person acquiring Shares on or after the date hereof and becoming a party to this Shareholder's Agreement in accordance with this Shareholder's Agreement. -6- (c) The right to require a Demand Registration under subsection (a) may be exercised by giving notice (a "Demand") to the Company stating the number of shares proposed to be sold therein. The Company shall not be required to effect more than one Demand Registration in any six-month period nor more than an aggregate of six Demand Registrations pursuant to this Article II. (d) Stockholder's right to a Demand Registration shall be deemed to have been satisfied upon (i) payment and delivery of the Shares to be sold in the related Underwriting, (ii) the failure of such a closing to occur due to a default by Stockholder or (iii) the withdrawal of the Demand Registration at the request of Stockholder after the related registration statement has been filed with the Securities and Exchange Commission, in accordance with Section 2.3, unless such withdrawal is made because the Manager of the Underwriting advises the Company that the Underwriting cannot be successfully completed because of market conditions or adverse factors relating to the business, affairs or financial condition of the Company. Section 2.2 Term. Notwithstanding the termination of this Agreement due to the occurrence of the Termination Date or otherwise, the registration rights provided for in this Agreement shall survive and continue until the earliest to occur of (i) January 1, 2000; (ii) the date on which all remaining Shares are freely saleable without registration; or (iii) the date on which all Shares have been sold or otherwise disposed of by Stockholder, unless this Agreement is terminated pursuant to any instrument in writing expressly terminating this Section. Section 2.3 Registration Procedure. (a) The registration statement for each Demand Registration will include the Shares specified in the related Demand and notice given pursuant to subsection 2.1(c) and will be reasonably satisfactory to counsel for the Stockholder and counsel for the Manager (which term includes, where appropriate, counsel for the underwriters in the Underwriting). The registration statement will be filed under the Securities Act within 60 days after receipt of the Demand therefor, but the Company may postpone such filing for a period not exceeding an additional 45 days, by giving notice of such delay to the Stockholder and the Manager, if the Company's Board of Directors determines in good faith that such filing would interfere with a pending material acquisition, disposition, or financing of the Company; provided, that the Company may not exercise this right to delay such filing more than once in any twelve month period. (b) With respect to each Demand Registration, the Company will: (i) use its reasonable best efforts to cause the registration statement to become effective under the Securities Act at the earliest possible date; (ii) amend the registration statement or supplement the prospectus whenever required by the terms of the underwriting agreement contemplated by Section 2.4; (iii) furnish such number of copies of the registration statement, prospectuses, preliminary prospectuses and amendments or supplements thereto as the Manager may reasonably request; (iv) make generally available to its security holders -7- an earnings statement satisfying the requirements of Section 10(a) of the Securities Act as promptly as practicable after the expiration of 12 months after the effective date of the registration statement; and (v) use its reasonable best efforts to register or qualify the Shares being registered in a Demand Registration under the securities or blue sky laws of such jurisdictions as the Manager may reasonably request and maintain such registrations or qualifications in effect for the period specified in the underwriting agreement contemplated by Section 2.4. (c) A Demand Registration may be withdrawn, subject to any required Securities and Exchange Commission approval and the related Underwriting terminated, at any time by the Stockholder, subject to the terms of Section 2.7. Section 2.4 Underwriting Arrangements. (a) In connection with each Demand Registration, the Company and the Seller will enter into and perform their respective obligations under an underwriting agreement with the Manager (whether acting alone or for a syndicate of underwriters) containing representations, warranties, conditions, covenants and indemnities customarily included in such agreements, used by so- called "major bracket" underwriters for public offerings of common stock on the registration form being used in such registration. The public offering price and underwriting discounts or commissions in an Underwriting will be determined by agreement between the Holders and the Manager. (b) The Company will cooperate with the Holders, the Manager, counsel for the Manager and counsel for the Holders in their investigation of the Company, the preparation of the registration statement and the marketing of the Shares being sold in the Underwriting, including making available the Company's officers, accountants, counsel, premises, books and records for such purpose. Each Holder participating in an Underwriting will furnish to the Company and the Manager such written information, powers of attorney and other documents as the Company, the Manager or their respective counsel may reasonably request in order to complete the Underwriting. Section 2.5 Holdback Agreements. At the request of the Manager in an Underwriting, the Company and each Holder will agree not to offer or sell any Common Stock (including Shares) for cash during the period beginning seven days prior to the effective date of the registration statement for such Underwriting and ending 90 days after such effective date except: (i) pursuant to such Underwriting, (ii) with the consent of the Manager, or (iii) in the case of the Company, pursuant to a stock purchase, option or other employee benefit plan for employees and agents of the Company or any subsidiary thereof ("Benefit Plans"), outstanding warrants, options or rights (including the conversion rights of convertible securities), or any dividend reinvestment or similar plan. Section 2.6 Piggyback Rights. If at any time on or before the Termination Date, the Company proposes to file a registration statement under the Act for a public offering of Common Stock for cash (other than in -8- connection with any sales referred to in clause (iii) of Section 2.5), it will give each Holder notice thereof and will include in such registration and any related underwritten public offering any Shares proposed to be sold by any Holder requesting such inclusion by notice given to the Company within ten days after the Company has given notice of such proposed registration. If such registration is an underwritten public offering and the managing underwriter thereof advises the Company that the offering would include more Common Stock than can be sold within a price range acceptable to the Company or other person on whose behalf the offering is being made, the amount to be sold therein by the Holders shall be reduced to the amount which in the opinion of such managing underwriter can be sold within such price range. Section 2.7 Expenses. The Company will bear all of its expenses of any piggyback registration contemplated by Section 2.6, except that each selling Holder shall pay its share of any underwriting discount or commission. With respect to the first three Demand Registrations, the Company shall pay, and, with respect to any Demand Registration thereafter, the Holders shall pay, all of the expenses of each Demand Registration including: (i) the costs of printing and shipping the prospectuses, supplements, underwriting agreements, blue sky surveys and stock certificates; (ii) the fees and expenses of the Company's counsel, accountants and transfer agents; (iii) the reasonable fees and expenses of the Manager's counsel for the blue sky qualification and survey; and (iv) all filing fees payable with respect to the Shares to be sold under the Securities Act, any blue sky laws, and to the National Association of Securities Dealers, Inc.; provided, however, that (x) each Holder shall in any event pay its share of any underwriting discount or commission, and (y) each Holder shall reimburse the Company for its pro rata share of the Company's costs and expenses of any Demand Registration withdrawn as described in subsection 2.1(d)(iii), unless such withdrawal is due to adverse factors relating to the business, affairs, or financial condition of the Company as described in subsection 2.1(d)(iii). Section 2.8 Indemnification. (a) The Company shall indemnify and hold harmless each Seller, each director, officer and partner of such Seller, and each other person, if any, who controls such Seller within the meaning of the Securities Act (collectively, including the Seller, such Seller's "Seller Indemnified Parties"), from and against any and all losses, claims, damages or liabilities, joint or several, and expenses (including, subject to subsection (c) hereof, fees of counsel and any amounts paid in any settlement effected with the consent of the Company) to which any such Seller Indemnified Party may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) or expense arises out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement or any preliminary or final prospectus contained therein or relating to an offer and sale of Shares registered under the Securities Act, or any amendment or supplement thereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not -9- misleading, and the Company agrees to reimburse such Seller Indemnified Party for any legal or any other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, that the Company shall not be liable to any such person to the extent that any such loss, claim, damage, liability (or action or proceeding, whether commenced or threatened, in respect thereof) or expenses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such person expressly for use therein. (b) Each Seller shall indemnify and hold harmless the Company, each director and officer of the Company and each other person, if any, who controls the Company within the meaning of the Securities Act (collectively, including the Company, the "Company Indemnified Parties"), from and against any and all losses, claims, damages or liabilities, joint or several, and expenses (including, subject to Subsection (c) hereof, fees of counsel and any amounts paid in settlement effected with the consent of such Seller) to which any such person may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) or expenses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact required to be stated in any registration statement or any preliminary or final prospectus contained therein or relating to an offer and sale of Shares registered under the Securities Act, or any amendment or supplement thereto, or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Seller expressly for use therein. (c) Promptly after receipt by a Seller Indemnified Party or a Company Indemnified Party (each an "Indemnified Party") of written notice of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to the indemnification provisions contemplated by this Section 2.8, such Indemnified Party shall, if a claim in respect thereof is to be made against an indemnifying party, give written notice to such indemnifying party of the commencement of such action; provided, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the indemnifying party of any obligations it may have under this Section 2.8 except to the extent that the indemnifying party has been prejudiced in any material respect by such failure. In case any such action is brought against an Indemnified Party, the indemnifying party shall be entitled to participate therein and to assume the defense thereof, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after such notice from the indemnifying party to such Indemnified Party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such Indemnified Party for any legal or other expenses subsequently -10- incurred by the latter in connection with the defense thereof other than reasonable costs of investigation unless (i) the indemnifying party has failed to assume the defense of such claim and to employ counsel reasonably satisfactory to such Indemnified Party or (ii) such Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of the Indemnified Party), in any of which events the fees and expenses of counsel for the Indemnified Party shall be borne by the indemnifying party. An indemnifying party who does not assume the defense of a claim shall not be liable for the fees and expenses of more than one counsel in any single jurisdiction for all Indemnified Parties who have available to them the same defenses with respect to such claim, or with respect to claims separate but similar or related in the same jurisdiction arising out of the same general allegations. No indemnifying party shall consent to entry of any judgment or enter into any settlement with respect to a claim without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, or unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim. No Indemnified Party shall consent to entry of any judgment or enter into any settlement of any such action the defense of which has been assumed by an indemnifying party without the consent of such indemnifying party, which consent shall not be unreasonably withheld. (d) If for any reason the indemnification provisions contemplated by Subsection (a) or (b) are unavailable to or insufficient to hold harmless an Indemnified Party in respect of any losses, claims, damages or liabilities referred to therein, then the indemnifying party shall contribute to the amount paid or payable by the Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the Indemnified Party as well as any other relevant equitable considerations. The relative fault of such indemnifying party and Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. For purposes of determining relative fault, the intent, knowledge, access to information and opportunity to correct or prevent a statement or omission (x) of the Company shall also be attributable to the Company Indemnified Parties and (y) of a Seller shall be attributable to its Seller Indemnified Parties. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in subsection (c) hereof, any legal or other fees or expenses reasonably incurred by such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Sellers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable -11- considerations referred to in the immediately preceding paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this subsection (d), no Seller in such capacity shall be required to contribute any amount in excess of the total proceeds received by it from the sale of Shares pursuant hereto. (e) The indemnification and contribution provisions contained in this Section 2.8 shall (i) with respect to any Seller Indemnified Party, survive the transfer of Shares by its Seller and with respect to all Indemnified Parties shall survive the termination of rights under this Section 2.8, (ii) be in addition to any rights or obligations under any underwriting agreement entered into pursuant to Section 2.4 and (iii) remain in full force and effect regardless of any investigation made by or on behalf of any Indemnified Party. Section 2.9 Certain Limitations on Registration Rights. Notwithstanding the other provisions of this Article II, the Company shall not be obligated to register Shares of any Holder if, in the opinion of counsel to the Company reasonably satisfactory to Stockholder and its counsel, the sale or other disposition of such Holder's shares, in the manner proposed by such Holder, may be effected without registering such Shares under the Securities Act. ARTICLE III DESIGNATION OF DIRECTORS Section 3.1 Appointment of Directors. Effective as of the closing of the acquisition of the Shares by Stockholder from Conseco, the Company agrees, if so requested by Stockholder, to appoint as directors (the "Stockholder Directors") two individuals specified by Stockholder to fill vacancies created by the resignation as directors of the two individuals previously designated by Conseco (the "Conseco Directors"), provided that the Conseco Directors shall have theretofore resigned their positions as directors of the Company; and provided further that the individuals specified by Stockholder shall be reasonably acceptable to the Company and shall not include any individual that is an officer, director, or employee of Stockholder or its majority controlled subsidiaries (an "Ineligible Person"). Section 3.2 Nomination of Successors. So long as Stockholder shall continue to own beneficially at least 25% of the Company's outstanding shares of Common Stock, Stockholder shall have the right to designate nominees selected and proposed from time to time by the Board of Directors for election to the Board by the stockholders as successors to the Stockholder Directors; provided that the individuals designated by Stockholder shall be reasonably acceptable to the Company and shall not include an Ineligible Person. If the beneficial ownership of the Company's outstanding shares of Common Stock by Stockholder falls below 25%, but remains at least 20% or more, Stockholder shall have the right to designate one nominee selected and proposed from time to time by the Board for election to the Board by the stockholders as -12- successor to one of the Stockholder Directors but only to the extent necessary such that Stockholder will continue to have one designee serving on the Board of Directors; provided that the individual designated by Stockholder shall be reasonably acceptable to the Company and shall not include an Ineligible Person. The Company shall use its best efforts to cause any nominee designated by Stockholder pursuant hereto to be elected by the stockholders including, without limitation, supporting the election of Stockholder designees in any proxy material prepared and circulated by the Company in connection with the election of directors. Notwithstanding the foregoing, the provisions of this Section 3.2 shall terminate on the Termination Date. ARTICLE IV MISCELLANEOUS Section 4.1 Interpretation. This Shareholder's Agreement shall be interpreted in accordance with the law of the State of Texas applicable to agreements made and performed therein. Section 4.2 Headings. Headings are solely for the convenience of the parties and shall not affect the interpretation of any provision of this agreement. Section 4.3 Sole Agreement. This Shareholder's Agreement constitutes the entire agreement and supersedes all prior agreements, whether written or oral, with respect to the subject matter hereof; provided,however, that unless and until Stockholder acquires the Shares, the Confidentiality Agreement, dated as of November 18, 1994, between Stockholder and Company shall remain in full force and effect. Section 4.4 Amendments, etc. This Shareholder's Agreement may not be amended, modified, or waived in any respect except by an instrument in writing duly executed by the party or parties bound thereby. Section 4.5 Notices. All notices, requests or demands required or permitted by this Shareholder's Agreement: (i) shall be in writing; (ii) shall be deemed to have been given, forwarded, made or delivered: (x) if delivered in person or by overnight courier service, when received, (y) if transmitted by fax, when so transmitted if evidence of completed transmission is received, and (z) if sent by registered or certified mail return receipt requested, on the earlier of the date of receipt or the fifth day after it is mailed; and (iii) shall be addressed: if to the Company, at 5555 San Felipe Road, Suite 900, Houston, Texas 77056, telephone (713) 888-7800, fax (713) 888-7894, Attention: General Counsel (or to such other address as the Company shall furnish by notice given to such Holder), and if to Stockholder, American General Corporation, at 2929 Allen Parkway, Houston, Texas 77019, telephone (713) 522-1111, fax (713) 831-1300, Attention: Robert M. Devlin, Vice Chairman, with copies to American General Corporation, at 2929 Allen Parkway, Houston, Texas 77019, telephone (713) 522-1111, fax (713) 831-1266, Attention: Jon P. Newton, Senior Vice President and General Counsel, and to Skadden, Arps, Slate, Meagher & Flom, at 919 Third Avenue, New York, New York -13- 10022, telephone (212) 735-3000, fax (212) 735-2000, Attention: Morris J. Kramer (or to such other address as such party shall furnish by notice given to the Company). Section 4.6 Termination. Except as may otherwise be specifically provided herein, this Agreement shall terminate on the Termination Date, and all provisions of this agreement shall terminate as to any particular Shares, upon the completion of a sale of such Shares in accordance with the terms of this Agreement. This Shareholder's Agreement or any provision hereof may also be terminated by a document executed in the manner provided for amendments to this agreement in Section 4.4, with the same force and effect as provided therein. Section 4.7 Specific Performance, etc. Each person, by becoming a party to this agreement, acknowledges and agrees that its breach or nonperformance of any provision of this agreement, in accordance with the specific terms hereof, would result in irreparable harm to the Company and to each other Holder for which money damages would not provide an adequate remedy. Accordingly, each person (i) agrees that the Company, Stockholder, and each Holder shall be entitled to specific performance, injunctive or other equitable relief against such person in the event of its breach or other nonperformance of any of the provisions of this agreement; and (ii) waives any requirement for the securing or posting of any bond in connection with such remedy. Section 4.8 Counterparts. This Shareholder's Agreement may be executed in counterparts all of which together shall constitute a single agreement. Section 4.9 Effectiveness. This Shareholder's Agreement shall become effective upon the closing of the acquisition by Stockholder of the Shares; provided, however, this Shareholder's Agreement shall be of no force and effect if such closing does not occur prior to January 31, 1995. Section 4.10 Amendments to Employment Agreements. The Company hereby agrees that it will not alter, amend or rescind the amendments to the Employment Agreements of Messrs. Poulos, Scott, Graf and McGimsey attached hereto as Exhibits B, C, D and E in a manner that would adversely affect the exception from the change in control provisions for Stockholder contained therein. Section 4.11 Assignment. 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 Stockholder may be assigned by Stockholder to any of its wholly owned subsidiaries but no such assignment shall relieve Stockholder of its obligations hereunder. -14- IN WITNESS WHEREOF, this Shareholder's Agreement has been executed and delivered by the undersigned as of the date first above written. WESTERN NATIONAL CORPORATION By: /s/ Michael J. Poulos Name: Michael J. Poulos Title: President AMERICAN GENERAL CORPORATION By: /s/ Harold S. Hook Name: Harold S. Hook Title: Chairman and Chief Executive Officer -15- EXHIBIT A RESOLVED, that the board of directors hereby approves the acquisition by American General of the Company's common stock from Conseco, which acquisition will result in American General becoming an "interested stockholder" within the meaning of Section 203 of the General Corporation Law of the State of Delaware. -16- EXHIBIT B AMENDMENT TO EMPLOYMENT AGREEMENT This Amendment to Employment Agreement ("Amendment"), entered into as of this 2nd day of December, 1994, by and between Western National Corporation, a Delaware corporation ("Company"), and Michael J. Poulos ("Executive"), W I T N E S S E T H: WHEREAS, the Company and Executive have previously entered into an Employment Agreement, dated September 9, 1993, providing for the employment of Executive by the Company (the "Employment Agreement"); and WHEREAS, the Company and Executive hereby wish mutually to amend the Employment Agreement; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows: 1. Subject to paragraph 3, paragraph (y) of Section 10(d)(iii) of the Employment Agreement is hereby amended and restated in full as follows: (y) no change of control shall be deemed to have occurred if and when any such person becomes, with the approval of the Board of Directors of the Company, the beneficial owner of securities of the Company representing 25% or more but less than 50% of the combined voting power of the Company's then outstanding securities entitled to vote with respect to the election of its Board of Directors and in connection therewith represents, and at all times continues to represent, in a filing, as amended, with the Securities and Exchange Commission on Schedule 13D or Schedule 13G (or any successor Schedule thereto) that "such person has acquired such securities for investment and not with the purpose nor with the effect of changing or influencing the control of the Company, nor in connection with or as a participant in any transaction having such purpose or effect", or words of comparable meaning and import. The designation by any such person, with the approval of the Board of Directors of the Company, of a single individual to serve as a member of, or observer at meetings of, the Company's Board of Directors, shall not be considered "changing or influencing the control of the Company" within the meaning of this paragraph, so long as -17- such individual does not constitute at any time more than one-third of the total number of directors serving on such Board. Notwithstanding the foregoing, any action taken or omitted to be taken by American General Corporation, a Texas corporation ("AG") or its majority controlled subsidiaries in accordance with and during the term of the Shareholder's Agreement, dated as of December 2, 1994, between the Company and AG, including, but not limited to, the acquisition of up to an aggregate 79% of the shares of Common Stock of the Company from time to time outstanding, and the designation by AG of not more than two individuals as directors of the Company, shall not constitute a change of control hereunder; provided that the acquisition by any person other than AG or a majority controlled subsidiary of AG of securities representing more than 25% of the outstanding voting securities of the Company shall not be deemed to be an action taken or not taken by AG or a majority controlled subsidiary of AG within the meaning of this Section. 2. Subject to the modification provided for in paragraph 1 hereof, the Employment Agreement shall remain in full force and effect. 3. This amendment shall become effective upon the consummation of the sale contemplated by the Stock Purchase Agreement, dated as of December 2, 1994, between Conseco Investment Holding Company and American General Corporation, providing for the acquisition by American General Corporation of 24,947,500 shares of Company common stock. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written. WESTERN NATIONAL CORPORATION By: /s/ Richard W. Scott Richard W. Scott Executive Vice President /s/ Michael J. Poulos Michael J. Poulos -18- EXHIBIT C AMENDMENT TO EMPLOYMENT AGREEMENT This Amendment to Employment Agreement ("Amendment"), entered into as of this 2nd day of December, 1994, by and between Western National Corporation, a Delaware corporation ("Company"), and Richard W. Scott ("Executive"), W I T N E S S E T H: WHEREAS, the Company and Executive have previously entered into an Employment Agreement, dated February 8, 1994, providing for the employment of Executive by the Company (the "Employment Agreement"); and WHEREAS, the Company and Executive hereby wish mutually to amend the Employment Agreement; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows: 1. Subject to paragraph 3, paragraph (y) of Section 10(d) of the Employment Agreement is hereby amended and restated in full as follows: (y) no change of control shall be deemed to have occurred if and when any such person becomes, with the approval of the Board of Directors of the Company, the beneficial owner of securities of the Company representing 25% or more but less than 50% of the combined voting power of the Company's then outstanding securities entitled to vote with respect to the election of its Board of Directors and in connection therewith represents, and at all times continues to represent, in a filing, as amended, with the Securities and Exchange Commission on Schedule 13D or Schedule 13G (or any successor Schedule thereto) that "such person has acquired such securities for investment and not with the purpose nor with the effect of changing or influencing the control of the Company, nor in connection with or as a participant in any transaction having such purpose or effect", or words of comparable meaning and import. The designation by any such person, with the approval of the Board of Directors of the Company, of a single individual to serve as a member of, or observer at meetings of, the Company's Board of Directors, shall not be considered "changing or influencing the control of the Company" within the meaning of this paragraph, so long as -19- such individual does not constitute at any time more than one-third of the total number of directors serving on such Board. Notwithstanding the foregoing, any action taken or omitted to be taken by American General Corporation, a Texas corporation ("AG") or its majority controlled subsidiaries in accordance with and during the term of the Shareholder's Agreement, dated as of December 2, 1994, between the Company and AG, including, but not limited to, the acquisition of up to an aggregate 79% of the shares of Common Stock of the Company from time to time outstanding, and the designation by AG of not more than two individuals as directors of the Company, shall not constitute a change of control hereunder; provided that the acquisition by any person other than AG or a majority controlled subsidiary of AG of securities representing more than 25% of the outstanding voting securities of the Company shall not be deemed to be an action taken or not taken by AG or a majority controlled subsidiary of AG within the meaning of this Section. 2. Subject to the modification provided for in paragraph 1 hereof, the Employment Agreement shall remain in full force and effect. 3. This amendment shall become effective upon the consummation of the sale contemplated by the Stock Purchase Agreement, dated as of December 2, 1994, between Conseco Investment Holding Company and American General Corporation, providing for the acquisition by American General Corporation of 24,947,500 shares of Company common stock. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written. WESTERN NATIONAL CORPORATION By: /s/ Michael J. Poulos Michael J. Poulos President /s/ Richard W. Scott Richard W. Scott -20- EXHIBIT D AMENDMENT TO EMPLOYMENT AGREEMENT This Amendment to Employment Agreement ("Amendment"), entered into as of this 2nd day of December, 1994, by and between Western National Corporation, a Delaware corporation ("Company"), and John A. Graf ("Executive"), W I T N E S S E T H: WHEREAS, the Company and Executive have previously entered into an Employment Agreement, dated February 8, 1994, providing for the employment of Executive by the Company (the "Employment Agreement"); and WHEREAS, the Company and Executive hereby wish mutually to amend the Employment Agreement; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows: 1. Subject to paragraph 3, paragraph (y) of Section 10(d) of the Employment Agreement is hereby amended and restated in full as follows: (y) no change of control shall be deemed to have occurred if and when any such person becomes, with the approval of the Board of Directors of the Company, the beneficial owner of securities of the Company representing 25% or more but less than 50% of the combined voting power of the Company's then outstanding securities entitled to vote with respect to the election of its Board of Directors and in connection therewith represents, and at all times continues to represent, in a filing, as amended, with the Securities and Exchange Commission on Schedule 13D or Schedule 13G (or any successor Schedule thereto) that "such person has acquired such securities for investment and not with the purpose nor with the effect of changing or influencing the control of the Company, nor in connection with or as a participant in any transaction having such purpose or effect", or words of comparable meaning and import. The designation by any such person, with the approval of the Board of Directors of the Company, of a single individual to serve as a member of, or observer at meetings of, the Company's Board of Directors, shall not be considered "changing or influencing the control of the Company" within the meaning of this paragraph, so long as -21- such individual does not constitute at any time more than one-third of the total number of directors serving on such Board. Notwithstanding the foregoing, any action taken or omitted to be taken by American General Corporation, a Texas corporation ("AG") or its majority controlled subsidiaries in accordance with and during the term of the Shareholder's Agreement, dated as of December 2, 1994, between the Company and AG, including, but not limited to, the acquisition of up to an aggregate 79% of the shares of Common Stock of the Company from time to time outstanding, and the designation by AG of not more than two individuals as directors of the Company, shall not constitute a change of control hereunder; provided that the acquisition by any person other than AG or a majority controlled subsidiary of AG of securities representing more than 25% of the outstanding voting securities of the Company shall not be deemed to be an action taken or not taken by AG or a majority controlled subsidiary of AG within the meaning of this Section. 2. Subject to the modification provided for in paragraph 1 hereof, the Employment Agreement shall remain in full force and effect. 3. This amendment shall become effective upon the consummation of the sale contemplated by the Stock Purchase Agreement, dated as of December 2, 1994, between Conseco Investment Holding Company and American General Corporation, providing for the acquisition by American General Corporation of 24,947,500 shares of Company common stock. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written. WESTERN NATIONAL CORPORATION By: /s/ Michael J. Poulos Michael J. Poulos President /s/ John A. Graf John A. Graf -22- EXHIBIT E AMENDMENT TO EMPLOYMENT AGREEMENT This Amendment to Employment Agreement ("Amendment"), entered into as of this 2nd day of December, 1994, by and between Western National Corporation, a Delaware corporation ("Company"), and Arthur R. McGimsey ("Executive"), W I T N E S S E T H: WHEREAS, the Company and Executive have previously entered into an Employment Agreement, dated November 9, 1993, providing for the employment of Executive by the Company (the "Employment Agreement"); and WHEREAS, the Company and Executive hereby wish mutually to amend the Employment Agreement; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows: 1. Subject to paragraph 3, paragraph (y) of Section 10(d) of the Employment Agreement is hereby amended and restated in full as follows: (y) no change of control shall be deemed to have occurred if and when any such person becomes, with the approval of the Board of Directors of the Company, the beneficial owner of securities of the Company representing 25% or more but less than 50% of the combined voting power of the Company's then outstanding securities entitled to vote with respect to the election of its Board of Directors and in connection therewith represents, and at all times continues to represent, in a filing, as amended, with the Securities and Exchange Commission on Schedule 13D or Schedule 13G (or any successor Schedule thereto) that "such person has acquired such securities for investment and not with the purpose nor with the effect of changing or influencing the control of the Company, nor in connection with or as a participant in any transaction having such purpose or effect", or words of comparable meaning and import. The designation by any such person, with the approval of the Board of Directors of the Company, of a single individual to serve as a member of, or observer at meetings of, the Company's Board of Directors, shall not be considered "changing or influencing the control of the Company" within the meaning of this paragraph, so long as -23- such individual does not constitute at any time more than one-third of the total number of directors serving on such Board. Notwithstanding the foregoing, any action taken or omitted to be taken by American General Corporation, a Texas corporation ("AG") or its majority controlled subsidiaries in accordance with and during the term of the Shareholder's Agreement, dated as of December 2, 1994, between the Company and AG, including, but not limited to, the acquisition of up to an aggregate 79% of the shares of Common Stock of the Company from time to time outstanding, and the designation by AG of not more than two individuals as directors of the Company, shall not constitute a change of control hereunder; provided that the acquisition by any person other than AG or a majority controlled subsidiary of AG of securities representing more than 25% of the outstanding voting securities of the Company shall not be deemed to be an action taken or not taken by AG or a majority controlled subsidiary of AG within the meaning of this Section. 2. Subject to the modification provided for in paragraph 1 hereof, the Employment Agreement shall remain in full force and effect. 3. This amendment shall become effective upon the consummation of the sale contemplated by the Stock Purchase Agreement, dated as of December 2, 1994, between Conseco Investment Holding Company and American General Corporation, providing for the acquisition by American General Corporation of 24,947,500 shares of Company common stock. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written. WESTERN NATIONAL CORPORATION By: /s/ Michael J. Poulos Michael J. Poulos President /s/ Arthur R. McGimsey Arthur R. McGimsey -24- -----END PRIVACY-ENHANCED MESSAGE-----