exhibit.htm


    Exhibit 10.1

    

 

    AMENDMENT
NUMBER ONE TO THE

    PURCHASE
AGREEMENT

    


    dated as
of

    


    February
3, 2010

    


    between

    


    CONSECO,
INC.

    


    and

    


    MORGAN
STANLEY & CO. INCORPORATED

    


    relating
to the purchase and sale

    


    of

    


    UP TO $293,000,000 AGGREGATE PRINCIPAL
AMOUNT

    


    7.0%
CONVERTIBLE SENIOR NOTES DUE 2016

    


    of

    


    CONSECO,
INC.

     

     

     


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    This
AMENDMENT NUMBER ONE TO THE PURCHASE AGREEMENT, dated February 3, 2010 (the
“Amendment”), is entered
into by Conseco, Inc. (the “Company”) and Morgan Stanley
& Co. Incorporated (“Morgan
Stanley”).

     

    WITNESSETH:

     

    WHEREAS,
on October 14, 2009, the Company and Morgan Stanley entered into a Purchase
Agreement (the “Agreement”) pursuant to which
the Company has agreed to issue and sell to Morgan Stanley, as initial
purchaser, and Morgan Stanley has agreed to buy from the Company, subject to the
conditions set forth therein, up to $293,000,000 aggregate principal amount of
Securities on any Tender Offer Closing Date, the Put Right Closing Date or the
Redemption Closing Date;

     

    WHEREAS,
the Company seeks to repurchase its outstanding Existing Convertibles from
holders thereof pursuant to privately negotiated transactions and issue and sell
to Morgan Stanley an aggregate principal amount of Securities equal to the
aggregate principal amount of Existing Convertibles repurchased by the Company
in such transactions; and

    


    WHEREAS,
the Company and Morgan Stanley have determined that the Agreement should be
amended as set forth herein.

     

    NOW,
THEREFORE, in consideration of the mutual promises contained herein, the parties
hereto hereby agree as follows:

     

    Section
1. Amendments to the
Agreement.

     

    (a)   The
second paragraph of the Preamble to the Agreement shall be deleted and replaced
with the following:

     

    “As
described in Section 2, the Company will, upon receipt of payment therefor,
issue Securities as follows: (a) on the closing date for the cash tender offer
for any and all of its outstanding 3.50% Convertible Debentures due September
30, 2035 (the “Existing
Convertibles”) that it intends to commence soon after the execution of
this Agreement and, if any Existing Convertibles remain outstanding, on the
closing date for any subsequent issuer tender offer for the Existing
Convertibles that expires before October 5, 2010, (each, a “Tender Offer” and
collectively, the “Tender
Offers”), (b) on the closing date for any privately negotiated repurchase
by the Company of any of its outstanding Existing Convertibles that settles
before October 5, 2010 (each, a “Repurchase” and collectively,
the “Repurchases”), (c)
if any Existing Convertibles remain outstanding, on September 30, 2010, the date
the holders of the Existing Convertibles are entitled to require the Company to
repurchase such securities pursuant to their terms (if such holders exercise
their repurchase right), and (d) if any Existing Convertibles remain
outstanding, on October 5, 2010, the date the


    
      
         


      

      
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    Company
is entitled to redeem from the holders thereof the Existing Convertibles
pursuant to their terms (if the Company exercises its redemption
right).”

    


    (b)   The
fourth paragraph of the Preamble to the Agreement shall be deleted and replaced
with the following:

    


    “The
Private Placement, the Tender Offers, any Repurchases and the offer and sale of
the Securities are hereinafter referred to as the “Transactions”. The Indenture
and this Agreement are hereinafter referred to as the “Transaction Agreements.”
Except where the context expressly provides for the contrary, the
representations, warranties and other provisions of this Agreement should not be
interpreted as referring to the Tender Offers, any Repurchases or the Private
Placement.”

    


    (c)   Section
2 of the Agreement shall be deleted and replaced with the
following:

     

    “Agreements to Sell and
Purchase.  The Company hereby agrees to sell to the Initial
Purchaser, and the Initial Purchaser, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase from the Company the Securities at a purchase price equal to
the aggregate principal amount of the Securities purchased on the applicable
Closing Date (as defined below) multiplied by (1 – (0.07 x N/365)), where N
equals the number of days from, and including, the Effectiveness Date to, and
excluding, the applicable Closing Date, less an amount equal to 2% of the
aggregate principal amount of such Securities, (the “Purchase Price”), as
follows:

    


    
      	
              i.  

            	
              On
      each date that a Tender Offer settles (a “Tender Offer Closing
      Date”), the Initial Purchaser will purchase an aggregate principal
      amount of Securities equal to the aggregate principal amount of Existing
      Convertibles accepted for purchase by the Company in each such Tender
      Offer; 

            


    

    


    
      	
              ii.  

            	
              On
      each date that a Repurchase settles (a “Repurchase Closing
      Date”), the Initial Purchaser will purchase an aggregate principal
      amount of Securities equal to the aggregate principal amount of Existing
      Convertibles repurchased by the Company in each such
      Repurchase;

            


    

    


    
      	
              iii.  

            	
              On
      September 30, 2010 (the “Put Right Closing
      Date”), the Initial Purchaser will purchase the aggregate principal
      amount of Existing Convertibles remaining after the completion of the
      Tender Offers and any Repurchases, if any, that the Company is required by
      holders thereof to repurchase pursuant to the terms of the Existing
      Convertibles; and

            


    

    


    
      	
              iv.  

            	
              On
      October 5, 2010 (the “Redemption  Closing
      Date”), the Initial Purchaser will purchase the aggregate principal
      amount of Existing

            


    


    
      
         


      

      
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    Convertibles
remaining after the completion of the Tender Offers, any Repurchases and the Put
Right Closing Date, if any, that the Company elects to redeem from the holders
thereof pursuant to the terms of the Existing Convertibles.

    


    Any
Tender Offer Closing Date, any Repurchase Closing Date, the Put Right Closing
Date, and the Redemption Closing Date, each a “Closing Date,” are
collectively referred to herein as the “Closing Dates”. For the
avoidance of doubt, even if any Existing Convertibles remain outstanding on the
Redemption Closing Date, the Company shall be under no obligation to sell and
the Initial Purchaser shall be under no obligation to buy, any Securities
subsequent to the Redemption Closing Date and this Agreement shall immediately
terminate without any obligation or liability of either party (or any
stockholder, director, officer, employee, agent, consultant or representative of
such party) to the other party to this Agreement by reason of this Agreement,
provided that Section 9 and Section 11 shall survive any such
termination.

    


    Notwithstanding
anything to the contrary set forth herein, but subject to the conditions set
forth in Section 5, this Agreement (including the Initial Purchaser’s obligation
to purchase and pay for the Securities on each Closing Date, upon satisfaction
of the conditions set forth in Section 6), shall become effective two Business
Days (as defined below) after execution and delivery of this Agreement by the
parties hereto (such date, the “Effectiveness Date”). For
purposes of this Agreement, a “Business Day” means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City or the City of Chicago are authorized or
obligated by law or executive order to close.”

    


     

    Section
2. Effectiveness

     

    This
Amendment shall become effective upon execution by the parties
hereto.

     

    Section
3. Reference to and Effect on
the Agreement.

     

    (a)   On
and after the date of this Amendment, each reference in the Agreement to “this
Agreement,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to
the Agreement as amended by this Amendment.

     

    (b)   Except
as specifically amended above, the Agreement shall remain in full force and
effect and is hereby ratified and confirmed.

     

    Section
4. Due Authorization,
Execution and Delivery.

     

    Each of
the Company and Morgan Stanley represents and warrants that this Amendment has
been duly authorized, executed and delivered by it.

     


    
      
         


      

      
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    Section
5. Governing
Law.

     

    THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.

    


    Section
6. Defined
Terms.

     

    Capitalized
terms used herein and not otherwise defined shall have the respective meanings
given such terms in the Agreement.

     

    Section
7. Counterparts and Method of
Execution.

     

    This
Amendment may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall constitute but one and
the same instrument.

     

    Section
8. Headings.

     

    The
headings of the sections of this Amendment have been inserted for convenience of
reference only and shall not be deemed a part of this Amendment.

     

    


     

    


     

    


     

    


     

    


     

    


     

    


     

    


    [Signature
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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their duly authorized officers as of the date first written
above.

    


    CONSECO,
INC.

    


    By:    /s/ Karl W.
Kindig 

    Name:  Karl
W. Kindig

    Title:  Secretary

    


    


    MORGAN
STANLEY & CO. INCORPORATED

    


    By:     /s/
Kenneth G. Pott 

    Name:  Kenneth
G. Pott

    Title:  Managing
Director

    


    


    



    
      
         


      

      
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