REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (as it may be amended from time to
time, this "Agreement") dated June 28, 2000 is between General Electric Company,
a New York corporation ("General Electric") and Conseco, Inc., an Indiana
corporation (the "Company").
PRELIMINARY STATEMENTS
1. The Company has agreed to issue to GE Capital Equity Investments,
Limited, an indirect subsidiary of General Electric ("GE Capital
Equity"), a warrant to purchase 10,500,000 shares of common stock, no
par value, of Conseco (the "Original Warrant").
2. General Electric desires, and the Company has agreed to provide, the
rights contained in this Agreement in order to permit GE Capital Equity
and any additional party to this Agreement pursuant to Section 6.01 (a
"Holder") to resell the Original Warrant and all warrants issued upon
transfer, division or combination of, or in substitution for, the
Original Warrant, or such warrants issued in respect thereof (the
"Warrants") pursuant to a registration statement that is effective
under the Securities Act of 1933, as amended (the "Securities Act").
3. General Electric desires, and the Company has agreed to provide the
rights contained in this Agreement in order to permit the Holders to
receive shares of Common Stock (as defined below) that are registered
under the Securities Act upon exercise of the Warrants.
In consideration of the premises and the mutual agreements and
covenants set forth in this Agreement, General Electric and the Company agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
"Commission" means the Securities and Exchange Commission or any
other similar or successor agency of the United States government administering
the Securities Act.
"Common Stock" means (except where the context otherwise
indicates) the Common Stock, no par value, of Company as constituted on the date
of this Agreement, and any other capital stock the holder of Warrants would be
entitled to receive upon exercise of such Warrants.
"Encumbrance" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any kind,
including, without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Governmental Authority" means any United States federal, state or
local government, governmental, regulatory or administrative authority, agency
or commission, any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Law" means any statute, law, ordinance, regulation, rule, code,
order, other requirement or rule of law of any Governmental Authority.
"Prospectus" means the prospectus included in any Registration
Statement, together with and including any amendment or supplement to such
prospectus, and all material incorporated by reference in such Prospectus.
"Registrable Securities" means (i) the Warrants, provided, that as
to any Warrant, such securities shall cease to constitute the same for purposes
of this Agreement if and when (A) a registration statement with respect to the
resale of such securities shall have been declared effective by the Commission
and such securities shall have been sold pursuant thereto in accordance with the
intended plan and method of distribution therefor set forth in the final
prospectus forming part of such registration statement, (B) such securities
shall have been sold in satisfaction of all applicable resale provisions of Rule
144 under the Securities Act, (C) such securities may be resold pursuant to Rule
144(k) under the Securities Act (or any successor provision) or all of such
Holder's Warrants may be resold in a single ninety (90) day period under Rule
144(e)(1)(i) of the Securities Act and do not require qualification under any
state securities or "blue sky" law then in effect, or the use of an applicable
exemption therefrom and, in each case, the Company has removed any restrictive
legend on the Warrants, or (D) such securities cease to be issued and
outstanding for any reason), and (ii) Common Stock issuable upon exercise of the
Warrants, provided, that as to Common Stock, such securities shall cease to
constitute the same for purposes of this Agreement if and when a registration
statement with respect to the sale of such securities shall have been declared
effective by the Commission and such securities shall have been issued pursuant
thereto in accordance with the intended plan and method of distribution therefor
set forth in the final prospectus forming part of such registration statement.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.01. Initial Filing and Effectiveness of Registration
Statement.
The Company shall, as soon as reasonably practicable after the
Effective Date,
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but in any event no later than July 10, 2000, prepare and file a Registration
Statement on Form S-3 (the "Registration Statement") covering the resale of the
Warrants by the Holders and the issuance of Common Stock pursuant to the
exercise of the Warrants, in both cases, to be made on a continuous basis
pursuant to Rule 415 under the Securities Act covering such number of Warrants,
owned by the Holders and such number of shares of Common Stock as are issuable
upon exercise of the Warrants (as such number may increase from time to time
pursuant to the terms of the Warrants). The Company will use its best efforts to
cause the Registration Statement to be declared effective on or before August
15, 2000.
SECTION 2.02. Maintenance of Registration Statement.
(a) The Company shall use its best efforts to keep the
Registration Statement continuously effective until the date that no Holder owns
any Registrable Securities. Upon the occurrence of any event that would cause
the Registration Statement or the Prospectus contained therein (i) to contain an
untrue statement of material fact or omit to state any material fact necessary
to make the statements therein not misleading or (ii) not to be effective and
usable for the resale of all or part of the Warrants by the Holders and the
issuance of Common Stock pursuant to the exercise of the Warrants (including due
to increases from time to time pursuant to the terms of the Warrants), the
Company shall promptly file an appropriate amendment to the Registration
Statement curing such defect, and, if Commission review is required, use its
best efforts to cause such amendment to be declared effective as soon as
practicable;
(b) The Company shall prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement effective; cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution set forth in such Registration Statement or supplement to the
Prospectus;
(c) The Company shall advise the Holder Representative promptly
and, if requested by the Holder Representative, confirm such advice in writing,
(i) when any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any successor Registration Statement or any post-effective
amendment thereto, when the same has become effective, (ii) of any request by
the Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the
Warrants or the Common Stock for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (iv) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order
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to make the statements therein, in the light of the circumstances under which
they were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Registrable
Securities under state securities or "blue sky" laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order at the earliest
possible time or, failing that, to promptly file another Registration Statement
covering the Registrable Securities, in the event of an event or circumstance of
the kind described in clause (iv) above, the Company shall use its best efforts
to cure such inaccuracy at the earliest possible time, and in any event within
90 days of the occurrence of such event or circumstance;
(d) The Company shall subject to paragraph (a) above, if any fact
or event contemplated by paragraph (c)(iii) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration Statement
or related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the Holders, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(e) The Company shall furnish to the Holder Representative, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus, which documents will be subject to the
review and comment of the Holder Representative for a period of at least five
Business Days, and the Company shall not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration Statement or
Prospectus to which the Holder Representative shall reasonably object within
five Business Days after the receipt thereof. The Holder Representative shall be
deemed to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein not misleading or fails
to comply with the applicable requirements of the Securities Act;
(f) The Company shall make available, at reasonable times, for
inspection by the Holder Representative and any attorney or accountant retained
by the Holder Representative, all financial and other pertinent corporate
documents and records of Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by the Holder
Representative, or any such attorney or accountant in connection with a sale of
the Warrants or Common Stock, to the extent such information relates to the
Registration Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness;
(g) The Company shall if requested by the Holder Representative,
promptly include in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as the
Holder Representative may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as practicable
after the Company is notified of
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the matters to be included in such Prospectus supplement or post-effective
amendment;
(h) The Company shall furnish to Holder Representative in
connection with each exercise of the Warrants or issuance of Common Stock,
without charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(i) The Company shall upon the request of the Holder
Representative, enter into such agreements and make such representations and
warranties and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Warrants or the issuance of Common
Stock as may be reasonably requested by the Holder Representative in connection
with any sale or resale of the Warrants or issuance of Common Stock.
(j) The Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission; and
(k) The Company shall provide promptly to the Holder
Representative, upon request, each document filed with the Commission pursuant
to the requirements of Section 13 or Section 15(d) of the Exchange Act.
SECTION 2.03. Restrictions on Holders.
The Holders severally and not jointly agree that, upon receipt of
the notice referred to in Section 2.02(c)(iii) or any notice from the Company of
the existence of any fact of the kind described in Section 2.02(c)(iv) hereof
(in each case, a "Suspension Notice"), the Holders shall refrain from exercising
the Warrants, other than through a net issue exercise pursuant to Section 2.3(b)
of the Warrants, until (i) the Holder Representative has received copies of the
supplemented or amended Prospectus contemplated by clause 2.02(d) hereof, or
(ii) the Holder Representative is advised in writing by Company that the
Prospectus is again accurate in all material respects, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus (in each case, the "Recommencement Date"); provided that Company
shall deliver not more than one Suspension Notice during any given 365-day
period; and provided further that the Company shall not permit more than 90 days
to elapse from the date of delivery of any Suspension Notice to the
Recommencement Date revoking such Suspension Notice.
SECTION 2.04. Expenses.
All costs, fees and expenses incident to the Company's performance
of or compliance with this Agreement shall be borne by the Company, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state securities or
"blue sky" laws; (iii) all expenses of printing (including printing certificates
for the Common Stock to be issued upon exercise of the Warrants and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company; (v) all application and filing fees in
connection with listing the Common Stock on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance). The Company shall, in any event,
bear its
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internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company.
SECTION 2.05. Obtaining Stock Exchange Listings.
The Company shall from time to time take all action which may be
necessary so that the Common Stock issuable pursuant to the Warrants,
immediately upon their issuance upon the exercise of the Warrants, will be
listed on the principal securities exchanges, automated quotation systems or
other markets within the United States of America, if any, on which other shares
of Common Stock are then listed, if any.
SECTION 2.06. Supplying Information.
The Company shall cooperate with the Holders in supplying such
information as may be reasonably necessary for the Holders to complete and file
any information reporting forms presently or hereafter required by the
Commission or any other governmental entity in connection with the resale of
Warrants or the issuance of Common Stock. The Company shall also supply such
information as may be reasonably necessary for the Holders to comply with tax
and other applicable laws and applicable accounting standards. The Holders shall
cooperate with the Company in supplying such information as may be reasonably
necessary for Company to comply with its obligations hereunder.
SECTION 2.07. Blue Sky Registration.
The Company will use its reasonable best efforts to register or
qualify or cooperate with the Holders and their respective counsel in connection
with the registration or qualification of the Warrants or Common Stock under the
securities or "blue sky" laws of any such jurisdictions in the United States as
the Holders reasonably request in writing, and do any and all other acts or
things necessary or advisable to enable the disposition of such Warrants and
issuance of Common Stock in such jurisdictions. The Company will not be required
to take any actions under this Section 2.08 if such actions would require the
Company to submit to the general taxation of any jurisdiction where it is not
then so subject or to file in any jurisdiction any general consent to service of
process.
SECTION 2.08. Certificates.
The Company will cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Warrants to be sold
and Common Stock to be issued that do not bear any restrictive legends. Such
certificates will be in such denominations and registered in such names as the
Holders request at least two Business Days prior to any sale of Warrants or the
issuance of Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Holders as follows:
SECTION 3.01. Organization and Authority of the Company.
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The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Indiana and has all necessary
corporate power and authority to enter into this Agreement, to carry out its
obligations under this Agreement and to consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement by the Company,
the performance by the Company of its obligations contained in this Agreement
and the consummation by the Company of the transactions contemplated by this
Agreement have been duly authorized by all requisite corporate action on the
part of the Company. This Agreement has been duly executed and delivered by the
Company, and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
SECTION 3.02. No Conflict.
The execution, delivery and performance of this Agreement by the
Company do not and will not (a) violate, conflict with or result in the breach
of any provision of the Certificate of Incorporation or By-laws of the Company,
(b) conflict with or violate any Law or Governmental Order applicable to the
Company or (c) conflict with, or result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others any rights
of termination, amendment, acceleration, suspension, revocation, or cancellation
of, or result in the creation of any Encumbrance on any of the assets or
properties of the Company pursuant to, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Company is a party or by which any of
such assets or properties are bound or affected.
ARTICLE IV
INDEMNIFICATION
SECTION 4.01. Indemnification By The Company.
The Company will indemnify and hold harmless each of the Holders,
directors, officers, employees, agents, affiliates, successors and assigns
(each, a "Holder Indemnitee," and collectively, the "Holder Indemnitees") from
and against any and all losses, claims, damages, liabilities, debts,
obligations, monetary damages, judgements, fines, fees, penalties, interest
obligations, deficiencies, and expenses, interest, court costs, reasonable costs
of investigators, reasonable fees and expenses of attorneys, accountant,
financial advisors, engineers and other expenses, and other expenses of
litigation ("Losses") incurred or suffered in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted to
which any Holder Indemnitee may become subject under the Securities Act, the
Exchange Act or other federal or state securities law or regulation, at common
law or otherwise, insofar as such Losses arise out of, result from or are based
upon (a) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary prospectus or
any amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of
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the circumstances under which they were made, not misleading, or (b) any
violation by the Company of the Securities Act or the Exchange Act, or other
federal or state securities law applicable to the Company and relating to any
action or inaction required of the Company in connection with such registration.
In addition, the Company will reimburse any Holder Indemnitee for any reasonable
investigation, legal or other expenses incurred by such Holder Indemnitee in
connection with investigating or defending any such Loss. Notwithstanding
anything herein to the contrary, the Company will not be liable with respect to
the portion of any such Loss that (i) arises out of, results from or is based
upon any alleged untrue statement or alleged omission made in such Registration
Statement, preliminary Prospectus, Prospectus, or amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Holder Indemnitee specifically for use therein or (ii)
attributable to a Holder's (A) use of a Prospectus after being notified by the
Company to suspend use thereof pursuant to Section 2.01 above or (B) failure to
deliver a final Prospectus to the Person asserting any losses, claims, damages
and liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in an amended or supplemented Prospectus prepared by the
Company and delivered to the Holder at or prior to the time written confirmation
of sale to such Person was required to be made. The foregoing indemnity will
remain in full force and effect regardless of any investigation made by or on
behalf of the Holder, and will survive the transfer of such securities by the
Holder.
SECTION 4.02. Indemnification By Holders.
If a Holder sells Warrants under a Prospectus that is part of a
Registration Statement, the Holder will indemnify and hold harmless the Company,
its directors and each officer who signed such Registration Statement and each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act) (each, a "Controlling Person") under the same circumstances as
the foregoing indemnity from the Company to the Holders but only to the extent
that such Losses arise out of or are based upon any untrue or allegedly untrue
statement of a material fact or omission or alleged omission of a material fact
that was made in the Prospectus, the Registration Statement, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
relating to a Holder furnished to the Company by a Holder expressly for use
therein. In no event will the aggregate liability of a Holder exceed the amount
of the net proceeds received by the Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. Such indemnity will
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or such officer, director, employee or Controlling Person,
and will survive the transfer of such securities by the Holder.
SECTION 4.03. Contribution.
If the indemnification provided for in Sections 4.01 or 4.02 is
unavailable to an indemnified party or is insufficient to hold such indemnified
party harmless for any Losses in respect of which any such Section would
otherwise apply by its terms (other than by reason of exceptions provided
therein), then each applicable indemnifying party, in lieu of indemnifying
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such indemnified party, will have a joint and several obligation to contribute
to the amount paid or payable by such indemnified party as a result of such
Losses. Such contribution will be in such proportion as is appropriate to
reflect the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions, statements
or omissions that resulted in such Losses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party, on the
one hand, and indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been taken or made by, or 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 any such action, statement or omission. The amount paid or
payable by a party as a result of any such Losses will be deemed to include any
investigation, legal or other fees or expenses incurred by such party in
connection with any investigation or proceeding, to the extent such party would
have been indemnified for such expenses if the indemnification provided for in
Sections 4.01 or 4.02 was available to such party. In no event will the
aggregate liability of a Holder exceed the amount of the net proceeds received
by the Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
SECTION 4.04. Conduct Of Indemnification Proceedings.
An indemnified party pursuant to Section 4.01 or Section 4.02 (the
"Indemnified Party") shall give the indemnifying party under such section (the
"Indemnifying Party") notice of any matter that an Indemnified Party has
determined has given or could give rise to a right of indemnification under this
Agreement, within 60 days of such determination, stating the amount of the Loss,
if known, and method of computation of the Loss, and setting forth the basis on
which such right of indemnification is claimed or arises. The obligations and
Liabilities of the Indemnifying Party under this Article IV with respect to
Losses arising from claims of any third party that are subject to the
indemnification provided for in this Article IV ("Third Party Claims") shall be
governed by and contingent upon the following additional terms and conditions:
(i) If an Indemnified Party shall receive notice of any Third
Party Claim, the Indemnified Party shall give the Indemnifying
Party notice of such Third Party Claim within 30 days of the
receipt by the Indemnified Party of such notice; provided,
however, that the failure to provide such notice shall not release
the Indemnifying Party from any of its obligations under this
Article IV except to the extent the Indemnifying Party is
materially prejudiced by such failure and shall not relieve the
Indemnifying Party from any other obligation or Liability that it
may have to any Indemnified Party otherwise than under this
Article IV.
(ii) The Indemnifying Party shall assume and control the defense
of such Third Party Claim at its expense and through counsel of
its choice, provided, however, that if a conflict of interest is
reasonably likely to arise, that would make it inappropriate in
the judgment of the Indemnified Party, acting in good faith, for
the same counsel to represent both the
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Indemnified Party and the Indemnifying Party, then the Indemnified
Party shall be entitled to retain its own counsel, in each
jurisdiction for which the Indemnified Party determines counsel is
required, at the expense of the Indemnifying Party.
(iii) The Indemnified Party shall cooperate with the Indemnifying
Party in such defense and make available to the Indemnifying Party
all witnesses, pertinent records, materials and information in the
Indemnified Party's possession or under the Indemnified Party's
control relating thereto as is reasonably required by the
Indemnifying Party.
(iv) The Indemnifying Party may settle any such Third Party Claim
without the prior written consent of the Indemnified Party, but
only if the Indemnifying Party pays all amounts arising out of
such settlement concurrently with the effectiveness of the
settlement and obtains, as a condition of any settlement or other
resolution, a complete release of all Indemnified Parties in
connection with such Third Party Claim.
ARTICLE V
OTHER AGREEMENTS
SECTION 5.01. Holder Representative.
(a) The Holders agree to appoint one Person to act as their
representative, attorney in fact and proxy with respect to certain matters
specified in this Agreement (the "Holder Representative"). The parties have
designated General Electric Capital Services, Inc. as the initial Holder
Representative. The Holder Representative may resign at any time, and a Holder
Representative may be removed at any time by the vote of a majority in interest
of the Holders. In the event of the death, resignation or removal of the Holder
Representative, a new Holder Representative shall be appointed by a vote of a
majority in interest of the Holders, such appointment to become effective upon
the written acceptance thereof by the new Holder Representative. Any failure by
a majority in interest of the Holders to appoint a new Holder Representative
upon the death, resignation or removal of the Holder Representative shall not
have the effect of releasing the Holders from any liability under this
Agreement.
(b) The Holder Representative shall have such powers and authority
as are necessary to carry out the functions assigned to the Holder
Representative under this Agreement; provided, however, that the Holder
Representative will have no obligation to act on behalf of the Holders, except
as expressly provided herein. The Holder Representative will at all times be
entitled to rely on any directions received from a majority in interest of the
Holders. The Holder Representative shall, at the expense of the Holders, be
entitled to engage such counsel, experts and other agents and consultants as
they shall deem necessary in connection with exercising their powers and
performing their function hereunder and (in the absence of bad faith on the part
of the Holder Representative) shall be entitled to conclusively rely on the
opinions and advice of such Persons.
(c) The Holder Representative shall not be entitled to any fee,
commission or other
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compensation for the performance of its services hereunder, but shall be
entitled to the payment of all his or her expenses incurred as the Holder
Representative. In connection with this Agreement, and any instrument, agreement
or document relating hereto or thereto, and in exercising or failing to exercise
all or any of the powers conferred upon the Holder Representative hereunder, the
Holder Representative shall incur no responsibility whatsoever to any Holder by
reason of any error in judgment or other act or omission performed or omitted
hereunder or any such other agreement, instrument or document, excepting only
responsibility for any act or failure to act which represents willful
misconduct. Each Holder shall indemnify, pro rata based upon such holder's
percentage interest, the Holder Representative against all losses, damages,
liabilities, claims, obligations, costs and expenses, including reasonable
attorneys', accountants' and other experts' or consultant's fees and the amount
of any judgment against the Holder Representative, of any nature whatsoever,
arising out of or in connection with any claim, investigation, challenge, action
or proceeding or in connection with any appeal thereof, relating to the acts or
omissions of the Holder Representative hereunder. The foregoing indemnification
shall not apply in the event of any action or proceeding which finally
adjudicates the liability of the Holder Representative hereunder for his or her
gross negligence or willful misconduct. In the event of any indemnification
hereunder, upon written notice from Holder Representative to the Holders as to
the existence of a deficiency toward the payment of any such indemnification
amount, each such holder shall promptly deliver to the Holder Representative
full payment of his or her ratable share of the amount of such deficiency, in
accordance with such Holder's percentage interest. In no event shall the Company
be responsible for any reimbursement or indemnification of the Holder
Representative.
(d) All of the indemnities, immunities and powers granted to the
Holder Representative under this Agreement shall survive the termination of this
Agreement.
(e) Notwithstanding anything herein to the contrary, each Holder
hereby acknowledges that the Company shall not have any responsibility or
obligation whatsoever to any such Holder or to any other party with respect to
or arising out of any actions taken or any inaction by the Holder
Representative.
(f) The Company shall have the right to rely conclusively upon all
actions taken or omitted to be taken by the Holder Representative pursuant to
this Agreement and any instrument, agreement or document relating hereto, all of
which actions or omissions shall be legally binding upon all the Holders.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Additional Parties.
Upon the transfer, division or combination of the Warrants, the
holder of Warrants received in such transfer, division or combination which are
Registrable Securities, shall become a party to this Agreement by agreeing in
writing to be bound by the terms and conditions of this Agreement pursuant to an
instrument of assumption in a form reasonable
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acceptable to the Company and the Holder Representative and shall thereby be
deemed a Holder for the purposes of this Agreement.
SECTION 6.02. Amendments; Waivers.
This Agreement may not be amended, changed, supplemented, waived
or otherwise modified or terminated, except upon the execution and delivery of a
written agreement executed by the Company and the Holder Representative;
provided, however, that the Holder Representative shall not amend, modify or
supplement this Agreement in manner that is detrimental to the Holders without
first obtaining the written consent of a majority in interest of the Holders to
such amendment, modification or supplement; provided, further, however, that any
amendment, modification or supplement made by the Holder Representative with
such consent shall bind all Holders. No course of dealing or any delay or
failure to exercise any right hereunder on the part of the Holder Representative
or the Holders shall operate as a waiver of such right or otherwise prejudice
the rights, powers or remedies of the Holder Representative or the Holders.
SECTION 6.03. Notices.
All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be given or made (and shall
be deemed to have been duly given or made upon receipt) by delivery in person,
by courier service, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 6.03):
(a) If to any Holder or to the Holder Representative at:
General Electric Capital Services, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx
With a copy to:
General Electric Company
W3A
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Vice President and Senior Counsel
for Transactions
(b) if to the Company at:
Conseco, Inc.
00000 X. Xxxxxxxxxxxx Xx.
Xxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
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Each such notice or other communication shall be deemed to have been duly given
or served on the date on which personally delivered, with receipt acknowledged,
telecopied and confirmed by telecopy answerback, or delivered by air courier, or
three Business Days after the same shall have been deposited, appropriate
postage prepaid, in the United States mail.
SECTION 6.04. Successors and Assigns.
This Agreement and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors of Company, the Holder and the
successors and assigns of Holder. The provisions of this Agreement are intended
to be for the benefit General Electric and of all the Holders from time to time
of this Agreement and shall be enforceable by General Electric, the Holder's
Representative or any such Holder. No other Person shall have any right, benefit
or obligation under this Agreement.
SECTION 6.05. Severability.
If one or more provisions of this Agreement are held to be
unenforceable to any extent under applicable law, such provision shall be
interpreted as if it were written so as to be enforceable to the maximum extent
permitted by law so as to effectuate the parties' intent to the maximum extent,
and the balance of this Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms to the maximum
extent permitted by law.
SECTION 6.06. Section and Other Headings.
The section and headings contained in this Agreement are for the
convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 6.07. Governing Law.
This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard to the
conflict of law principles of such state.
SECTION 6.08. Remedies.
Each Holder, and the Holder Representative, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate. In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to
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any other available remedy.
SECTION 6.09. Counterparts.
For the convenience of the parties, any number of counterparts of
this Agreement may be executed by the parties hereto and each such executed
counterpart shall be, and shall be deemed to be, an original instrument.
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IN WITNESS WHEREOF, General Electric and the Company have caused this
Agreement to be executed on the date first written above by their respective
officers thereunto duly authorized.
Dated: June 28, 2000
CONSECO, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Interim Chairman and Chief
Executive Officer
GENERAL ELECTRIC COMPANY
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
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