SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of November 30, 1995 is
entered into by and between AMERICAN LIFE GROUP, INC., a Delaware corporation
(the "Company"), and BANKERS LIFE HOLDING CORPORATION, a Delaware corporation
(the "Purchaser").
In consideration of the mutual promises and consideration hereinafter
set forth, it is agreed as follows:
I. THE PURCHASE OF SECURITIES
1.1 Purchase of Securities. The Purchaser agrees to subscribe for and
purchase from the Company, and the Company agrees to issue and sell to the
Purchaser, 216,949 shares of its common stock, $1.00 par value (the "Common
Stock"), for an aggregate purchase price of $3,037,292.
The shares of Common Stock to be sold hereunder are hereinafter
referred to as the "Securities."
1.2 Closing. The closing of the purchase and sale of the Securities
(the "Closing") shall take place at such date (the "Closing Date"), time and
place as shall be mutually agreed to by the parties hereto. On the Closing Date,
the Company will deliver to the Purchaser a certificate for the Securities sold
by the Company, against delivery by the Purchaser of the purchase price therefor
by wire transfer of funds into the account specified by the Company.
II. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser makes the following representations and warranties to the
Company, each and all of which shall survive the execution and delivery of this
Agreement and the Closing:
2.1 Organization. The Purchaser is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and has full power and authority to enter into this Agreement and to perform its
obligations hereunder.
2.2 Due Execution, Delivery and Performance of the Agreement. The
execution, delivery, and performance of this Agreement (i) have been duly
authorized by all requisite action by the Purchaser, and (ii) will not violate
the Certificate of Incorporation or Bylaws of the Purchaser or any provision of
any indenture, mortgage, agreement, contract, or other instrument to which the
Purchaser is a party or by which it or any of its properties or assets are
bound, or be in conflict with, result in a breach of or constitute (upon notice
or lapse of time or both) a default under any such indenture, mortgage,
agreement, contract, or other instrument.
This Agreement is a legal, valid, and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms.
2.3 Investment Representation. The Purchaser is purchasing the
Securities for its own account, for investment purposes and not with a view to
the distribution thereof. The Purchaser agrees that it will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any of the Securities (or solicit any offers to buy, purchase, or
otherwise acquire or take a pledge of any of the Securities), except in
compliance with the Securities Act of 1933, as amended (the "Act"), the rules
and regulations thereunder and any applicable state securities laws.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes the following representations and warranties to the
Purchaser, each and all of which shall survive the execution and delivery of
this Agreement and the Closing:
3.1 Authorized and Outstanding Shares of Capital Stock. After giving
effect to the Closing, the authorized capital stock of the Company consists of
35,000,000 shares of Common Stock, $1.00 par value, of which 13,442,075 shares
are issued and outstanding, and 5,000,000 shares of Preferred Stock, $1.00 par
value, of which 126,000 shares of 1988 Series II Preferred Stock, 17,640 shares
of 1988 Series II Preferred Stock and 64,410 shares of 1994 Series Preferred
Stock are issued and outstanding.
3.2 Authorization and Issuance of Securities. The issuance of the
Securities has been duly authorized and, upon delivery to the Purchaser of
certificates therefor against payment in accordance with the terms hereof, the
Securities will have been validly issued and fully paid and non-assessable, free
and clear of all pledges, liens, encumbrances and pre-emptive rights.
3.3 Securities Laws. In reliance on the investment representations and
agreements contained in Section 2.3 hereof, the offer, issuance, sale and
delivery of the Securities, as provided in this Agreement, are exempt from the
registration requirements of the Act and all applicable state securities laws.
3.4 Organization. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and has
full corporate power and authority to enter into this Agreement and to perform
its obligations hereunder.
3.5 Due Execution, Delivery and Performance of the Agreement. The
execution, delivery, and performance of this Agreement (i) have been duly
authorized by all requisite corporate action by the Company, and (ii) will not
violate the Certificate of Incorporation
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or Bylaws of the Company or any provision of any indenture, mortgage, agreement,
contract, or other instrument to which it is a party or by which it or any of
its properties or assets are bound, or be in conflict with, result in a breach
of or constitute (upon notice or lapse of time or both) a default under any such
indenture, mortgage, agreement, contract, or other instrument. This Agreement is
a legal, valid, and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
IV. STOCKHOLDERS' AGREEMENT; LEGENDS
4.1 Stockholders' Agreement. The Company and the Purchaser
shall enter into an amendment to the Stockholders' Agreement dated
September 29, 1994 to provide that the Securities are subject to
such Agreement.
4.2 Legends. Each certificate representing the Securities
shall bear legends substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED BY THE
HOLDER PURSUANT TO A SECURITIES PURCHASE AGREEMENT DATED NOVEMBER 30,
1995 BY AND BETWEEN BANKERS LIFE HOLDING CORPORATION AND AMERICAN LIFE
GROUP, INC., AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED UNLESS THEY HAVE BEEN SO REGISTERED OR
AMERICAN LIFE GROUP, INC. 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 STOCKHOLDERS' AGREEMENT, AS
AMENDED, TO WHICH AMERICAN LIFE GROUP, INC. AND THE
REGISTERED HOLDER ARE PARTIES, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF AMERICAN LIFE GROUP, INC."
V. INDEMNIFICATION
5.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless the Purchaser from and against any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, attorneys'
fees, expenses and disbursements of any kind which may be imposed upon, incurred
by or asserted against the Purchaser in any manner relating to or arising out of
any untrue representation, breach of warranty or failure to perform any
covenants by the Company contained herein.
5.2 Indemnification by the Purchaser. The Purchaser agrees to indemnify
and hold harmless the Company from and against any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, attorneys'
fees, expenses and
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disbursements of any kind which may be imposed upon, incurred by or asserted
against the Company in any manner relating to or arising out of any untrue
representation or breach of warranty contained herein.
VI. MISCELLANEOUS
6.1 Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by another, or whenever any of the
parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company at:
American Life Group, Inc.
1100 Des Moines Building
Des Moines, Iowa 50309
Attn: President
with a copy to:
Conseco, Inc.
11825 N. Pennsylvania Street
Carmel, Indiana 46032
Attn: General Counsel
If to the Purchaser at:
Bankers Life Holding Corporation
222 Merchandise Mart Plaza
Chicago, Illinois 60654
Attn: President
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date personally delivered, with receipt
acknowledged, or upon receipt if delivered by registered or certified mail.
6.2 Binding Effect; Benefits. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties to
this Agreement and their respective successors and permitted assigns. Nothing
in this Agreement,
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express or implied, is intended or shall be construed to give any person other
than the parties to this Agreement or their respective successors or assigns any
legal or equitable right, remedy or claim under or in respect of any agreement
or any provision contained herein.
6.3 Waiver. Any party hereto may by written notice to the other (a)
extend the time for the performance of any of the obligations or other actions
of the other under this Agreement; (b) waive compliance with any of the
conditions or covenants of the other contained in this Agreement; and (c) waive
or modify performance of any of the obligations of the other under this
Agreement. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any preceding or
succeeding breach and no failure by either party to exercise any right or
privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
6.4 Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Company and the
Purchaser.
6.5 Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company or the Purchaser without the prior written consent of
the other party.
6.6 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the principles thereof regarding conflict of laws.
6.7 Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
6.8 Severability. In the event that any one or more of the provisions
contained in this Agreement shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision or provisions in every other respect and
the remaining provisions of this Agreement shall not be in any way impaired.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, each of the Company and the Purchaser has executed
this Agreement as of the day and year first above written.
AMERICAN LIFE GROUP, INC.
By:/S/ROLLIN M. DICK
-------------------------------
Rollin M. Dick,
Executive Vice President
BANKERS LIFE HOLDING CORPORATION
By:/S/FRED E. CROSLEY
------------------------------
Fred E. Crosley, President
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