{"id":43870,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/registration-rights-agreement-general-electric-co-and-conseco.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"registration-rights-agreement-general-electric-co-and-conseco","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/registration-rights-agreement-general-electric-co-and-conseco.html","title":{"rendered":"Registration Rights Agreement &#8211; General Electric Co. and Conseco Inc."},"content":{"rendered":"<pre>                         REGISTRATION RIGHTS AGREEMENT\n\n         This REGISTRATION RIGHTS AGREEMENT (as it may be amended from time to\ntime, this \"Agreement\") dated June 28, 2000 is between General Electric Company,\na New York corporation (\"General Electric\") and Conseco, Inc., an Indiana\ncorporation (the \"Company\").\n\n                             PRELIMINARY STATEMENTS\n\n     1.  The Company has agreed to issue to GE Capital Equity Investments,\n         Limited, an indirect subsidiary of General Electric (\"GE Capital\n         Equity\"), a warrant to purchase 10,500,000 shares of common stock, no\n         par value, of Conseco (the \"Original Warrant\").\n\n     2.  General Electric desires, and the Company has agreed to provide, the\n         rights contained in this Agreement in order to permit GE Capital Equity\n         and any additional party to this Agreement pursuant to Section 6.01 (a\n         \"Holder\") to resell the Original Warrant and all warrants issued upon\n         transfer, division or combination of, or in substitution for, the\n         Original Warrant, or such warrants issued in respect thereof (the\n         \"Warrants\") pursuant to a registration statement that is effective\n         under the Securities Act of 1933, as amended (the \"Securities Act\").\n\n     3.  General Electric desires, and the Company has agreed to provide the\n         rights contained in this Agreement in order to permit the Holders to\n         receive shares of Common Stock (as defined below) that are registered\n         under the Securities Act upon exercise of the Warrants.\n\n         In consideration of the premises and the mutual agreements and\ncovenants set forth in this Agreement, General Electric and the Company agree as\nfollows:\n\n                                   ARTICLE I\n\n                                   DEFINITIONS\n\n         SECTION 1.01. Definitions.\n\n              For purposes of this Agreement, the following terms shall have the\nmeanings set forth below:\n              \"Business Day\" means any day other than a Saturday, Sunday or\nother day on which commercial banks in New York City are authorized or required\nby law to close.\n              \"Commission\" means the Securities and Exchange Commission or any\nother similar or successor agency of the United States government administering\nthe Securities Act.\n              \"Common Stock\" means (except where the context otherwise\nindicates) the Common Stock, no par value, of Company as constituted on the date\nof this Agreement, and any other capital stock the holder of Warrants would be\nentitled to receive upon exercise of such Warrants.\n\n\n\n              \"Encumbrance\" means any security interest, pledge, mortgage, lien\n(including, without limitation, environmental and tax liens), charge,\nencumbrance, adverse claim, preferential arrangement or restriction of any kind,\nincluding, without limitation, any restriction on the use, voting, transfer,\nreceipt of income or other exercise of any attributes of ownership.\n              \"Exchange Act\" means the Securities Exchange Act of 1934, as\namended.\n              \"Governmental Authority\" means any United States federal, state or\nlocal government, governmental, regulatory or administrative authority, agency\nor commission, any foreign government, governmental, regulatory or\nadministrative authority, agency or commission or any court, tribunal, or\njudicial or arbitral body.\n              \"Governmental Order\" means any order, writ, judgment, injunction,\ndecree, stipulation, determination or award entered by or with any Governmental\nAuthority.\n              \"Law\" means any statute, law, ordinance, regulation, rule, code,\norder, other requirement or rule of law of any Governmental Authority.\n              \"Prospectus\" means the prospectus included in any Registration\nStatement, together with and including any amendment or supplement to such\nprospectus, and all material incorporated by reference in such Prospectus.\n              \"Registrable Securities\" means (i) the Warrants, provided, that as\nto any Warrant, such securities shall cease to constitute the same for purposes\nof this Agreement if and when (A) a registration statement with respect to the\nresale of such securities shall have been declared effective by the Commission\nand such securities shall have been sold pursuant thereto in accordance with the\nintended plan and method of distribution therefor set forth in the final\nprospectus forming part of such registration statement, (B) such securities\nshall have been sold in satisfaction of all applicable resale provisions of Rule\n144 under the Securities Act, (C) such securities may be resold pursuant to Rule\n144(k) under the Securities Act (or any successor provision) or all of such\nHolder's Warrants may be resold in a single ninety (90) day period under Rule\n144(e)(1)(i) of the Securities Act and do not require qualification under any\nstate securities or \"blue sky\" law then in effect, or the use of an applicable\nexemption therefrom and, in each case, the Company has removed any restrictive\nlegend on the Warrants, or (D) such securities cease to be issued and\noutstanding for any reason), and (ii) Common Stock issuable upon exercise of the\nWarrants, provided, that as to Common Stock, such securities shall cease to\nconstitute the same for purposes of this Agreement if and when a registration\nstatement with respect to the sale of such securities shall have been declared\neffective by the Commission and such securities shall have been issued pursuant\nthereto in accordance with the intended plan and method of distribution therefor\nset forth in the final prospectus forming part of such registration statement.\n\n                                   ARTICLE II\n\n                              REGISTRATION RIGHTS\n\n         SECTION 2.01. Initial Filing and Effectiveness of Registration\nStatement.\n\n              The Company shall, as soon as reasonably practicable after the\nEffective Date,\n\n                                       2\n\n\n\nbut in any event no later than July 10, 2000, prepare and file a Registration\nStatement on Form S-3 (the \"Registration Statement\") covering the resale of the\nWarrants by the Holders and the issuance of Common Stock pursuant to the\nexercise of the Warrants, in both cases, to be made on a continuous basis\npursuant to Rule 415 under the Securities Act covering such number of Warrants,\nowned by the Holders and such number of shares of Common Stock as are issuable\nupon exercise of the Warrants (as such number may increase from time to time\npursuant to the terms of the Warrants). The Company will use its best efforts to\ncause the Registration Statement to be declared effective on or before August\n15, 2000. \n\n         SECTION 2.02. Maintenance of Registration Statement. \n\n              (a) The Company shall use its best efforts to keep the\nRegistration Statement continuously effective until the date that no Holder owns\nany Registrable Securities. Upon the occurrence of any event that would cause\nthe Registration Statement or the Prospectus contained therein (i) to contain an\nuntrue statement of material fact or omit to state any material fact necessary\nto make the statements therein not misleading or (ii) not to be effective and\nusable for the resale of all or part of the Warrants by the Holders and the\nissuance of Common Stock pursuant to the exercise of the Warrants (including due\nto increases from time to time pursuant to the terms of the Warrants), the\nCompany shall promptly file an appropriate amendment to the Registration\nStatement curing such defect, and, if Commission review is required, use its\nbest efforts to cause such amendment to be declared effective as soon as\npracticable;\n\n              (b) The Company shall prepare and file with the Commission such\namendments and post-effective amendments to the Registration Statement as may be\nnecessary to keep such Registration Statement effective; cause the Prospectus to\nbe supplemented by any required Prospectus supplement, and as so supplemented to\nbe filed pursuant to Rule 424 under the Securities Act, and to comply fully with\nRules 424, 430A and 462, as applicable, under the Securities Act in a timely\nmanner; and comply with the provisions of the Securities Act with respect to the\ndisposition of all securities covered by the Registration Statement during the\napplicable period in accordance with the intended method or methods of\ndistribution set forth in such Registration Statement or supplement to the\nProspectus; \n\n              (c) The Company shall advise the Holder Representative promptly\nand, if requested by the Holder Representative, confirm such advice in writing,\n(i) when any Prospectus supplement or post-effective amendment has been filed,\nand, with respect to any successor Registration Statement or any post-effective\namendment thereto, when the same has become effective, (ii) of any request by\nthe Commission for amendments to the Registration Statement or amendments or\nsupplements to the Prospectus or for additional information relating thereto,\n(iii) of the issuance by the Commission of any stop order suspending the\neffectiveness of the Registration Statement under the Securities Act or of the\nsuspension by any state securities commission of the qualification of the\nWarrants or the Common Stock for offering or sale in any jurisdiction, or the\ninitiation of any proceeding for any of the preceding purposes, (iv) of the\nexistence of any fact or the happening of any event that makes any statement of\na material fact made in the Registration Statement, the Prospectus, any\namendment or supplement thereto or any document incorporated by reference\ntherein untrue, or that requires the making of any additions to or changes in\nthe Registration Statement in order to make the statements therein not\nmisleading, or that requires the making of any additions to or changes in the\nProspectus in order\n\n                                       3\n\n\nto make the statements therein, in the light of the circumstances under which\nthey were made, not misleading. If at any time the Commission shall issue any\nstop order suspending the effectiveness of the Registration Statement, or any\nstate securities commission or other regulatory authority shall issue an order\nsuspending the qualification or exemption from qualification of the Registrable\nSecurities under state securities or \"blue sky\" laws, the Company shall use its\nbest efforts to obtain the withdrawal or lifting of such order at the earliest\npossible time or, failing that, to promptly file another Registration Statement\ncovering the Registrable Securities, in the event of an event or circumstance of\nthe kind described in clause (iv) above, the Company shall use its best efforts\nto cure such inaccuracy at the earliest possible time, and in any event within\n90 days of the occurrence of such event or circumstance;\n\n              (d) The Company shall subject to paragraph (a) above, if any fact\nor event contemplated by paragraph (c)(iii) above shall exist or have occurred,\nprepare a supplement or post-effective amendment to the Registration Statement\nor related Prospectus or any document incorporated therein by reference or file\nany other required document so that, as thereafter delivered to the Holders, the\nProspectus will not contain an untrue statement of a material fact or omit to\nstate any material fact necessary to make the statements therein, in the light\nof the circumstances under which they were made, not misleading;\n\n              (e) The Company shall furnish to the Holder Representative, before\nfiling with the Commission, copies of any Registration Statement or any\nProspectus included therein or any amendments or supplements to any such\nRegistration Statement or Prospectus, which documents will be subject to the\nreview and comment of the Holder Representative for a period of at least five\nBusiness Days, and the Company shall not file any such Registration Statement or\nProspectus or any amendment or supplement to any such Registration Statement or\nProspectus to which the Holder Representative shall reasonably object within\nfive Business Days after the receipt thereof. The Holder Representative shall be\ndeemed to have reasonably objected to such filing if such Registration\nStatement, amendment, Prospectus or supplement, as applicable, as proposed to be\nfiled, contains an untrue statement of a material fact or omits to state any\nmaterial fact necessary to make the statements therein not misleading or fails\nto comply with the applicable requirements of the Securities Act;\n\n              (f) The Company shall make available, at reasonable times, for\ninspection by the Holder Representative and any attorney or accountant retained\nby the Holder Representative, all financial and other pertinent corporate\ndocuments and records of Company and cause the Company's officers, directors and\nemployees to supply all information reasonably requested by the Holder\nRepresentative, or any such attorney or accountant in connection with a sale of\nthe Warrants or Common Stock, to the extent such information relates to the\nRegistration Statement or any post-effective amendment thereto subsequent to the\nfiling thereof and prior to its effectiveness;\n\n              (g) The Company shall if requested by the Holder Representative,\npromptly include in any Registration Statement or Prospectus, pursuant to a\nsupplement or post-effective amendment if necessary, such information as the\nHolder Representative may reasonably request to have included therein,\nincluding, without limitation, information relating to the \"Plan of\nDistribution\" of the Registrable Securities; and make all required filings of\nsuch Prospectus supplement or post-effective amendment as soon as practicable\nafter the Company is notified of\n\n                                       4\n\n\nthe matters to be included in such Prospectus supplement or post-effective\namendment;\n\n              (h) The Company shall furnish to Holder Representative in\nconnection with each exercise of the Warrants or issuance of Common Stock,\nwithout charge, at least one copy of the Registration Statement, as first filed\nwith the Commission, and of each amendment thereto, including all documents\nincorporated by reference therein and all exhibits (including exhibits\nincorporated therein by reference);\n\n              (i) The Company shall upon the request of the Holder\nRepresentative, enter into such agreements and make such representations and\nwarranties and take all such other actions in connection therewith in order to\nexpedite or facilitate the disposition of the Warrants or the issuance of Common\nStock as may be reasonably requested by the Holder Representative in connection\nwith any sale or resale of the Warrants or issuance of Common Stock.\n\n              (j) The Company shall otherwise use its best efforts to comply\nwith all applicable rules and regulations of the Commission; and\n\n              (k) The Company shall provide promptly to the Holder\nRepresentative, upon request, each document filed with the Commission pursuant\nto the requirements of Section 13 or Section 15(d) of the Exchange Act.\n\n         SECTION 2.03. Restrictions on Holders.\n\n              The Holders severally and not jointly agree that, upon receipt of\nthe notice referred to in Section 2.02(c)(iii) or any notice from the Company of\nthe existence of any fact of the kind described in Section 2.02(c)(iv) hereof\n(in each case, a \"Suspension Notice\"), the Holders shall refrain from exercising\nthe Warrants, other than through a net issue exercise pursuant to Section 2.3(b)\nof the Warrants, until (i) the Holder Representative has received copies of the\nsupplemented or amended Prospectus contemplated by clause 2.02(d) hereof, or\n(ii) the Holder Representative is advised in writing by Company that the\nProspectus is again accurate in all material respects, and has received copies\nof any additional or supplemental filings that are incorporated by reference in\nthe Prospectus (in each case, the \"Recommencement Date\"); provided that Company\nshall deliver not more than one Suspension Notice during any given 365-day\nperiod; and provided further that the Company shall not permit more than 90 days\nto elapse from the date of delivery of any Suspension Notice to the\nRecommencement Date revoking such Suspension Notice. \n\n         SECTION 2.04. Expenses.\n\n              All costs, fees and expenses incident to the Company's performance\nof or compliance with this Agreement shall be borne by the Company, including\nwithout limitation: (i) all registration and filing fees and expenses; (ii) all\nfees and expenses of compliance with federal securities and state securities or\n\"blue sky\" laws; (iii) all expenses of printing (including printing certificates\nfor the Common Stock to be issued upon exercise of the Warrants and printing of\nProspectuses), messenger and delivery services and telephone; (iv) all fees and\ndisbursements of counsel for the Company; (v) all application and filing fees in\nconnection with listing the Common Stock on a national securities exchange or\nautomated quotation system pursuant to the requirements hereof; and (vi) all\nfees and disbursements of independent certified public accountants of the\nCompany (including the expenses of any special audit and comfort letters\nrequired by or incident to such performance). The Company shall, in any event,\nbear its \n\n                                       5\n\n\ninternal expenses (including, without limitation, all salaries and expenses of\nits officers and employees performing legal or accounting duties), the expenses\nof any annual audit and the fees and expenses of any Person, including special\nexperts, retained by the Company.\n\n         SECTION 2.05. Obtaining Stock Exchange Listings.\n\n              The Company shall from time to time take all action which may be\nnecessary so that the Common Stock issuable pursuant to the Warrants,\nimmediately upon their issuance upon the exercise of the Warrants, will be\nlisted on the principal securities exchanges, automated quotation systems or\nother markets within the United States of America, if any, on which other shares\nof Common Stock are then listed, if any.\n\n         SECTION 2.06. Supplying Information.\n\n              The Company shall cooperate with the Holders in supplying such\ninformation as may be reasonably necessary for the Holders to complete and file\nany information reporting forms presently or hereafter required by the\nCommission or any other governmental entity in connection with the resale of\nWarrants or the issuance of Common Stock. The Company shall also supply such\ninformation as may be reasonably necessary for the Holders to comply with tax\nand other applicable laws and applicable accounting standards. The Holders shall\ncooperate with the Company in supplying such information as may be reasonably\nnecessary for Company to comply with its obligations hereunder.\n\n         SECTION 2.07. Blue Sky Registration.\n\n              The Company will use its reasonable best efforts to register or\nqualify or cooperate with the Holders and their respective counsel in connection\nwith the registration or qualification of the Warrants or Common Stock under the\nsecurities or \"blue sky\" laws of any such jurisdictions in the United States as\nthe Holders reasonably request in writing, and do any and all other acts or\nthings necessary or advisable to enable the disposition of such Warrants and\nissuance of Common Stock in such jurisdictions. The Company will not be required\nto take any actions under this Section 2.08 if such actions would require the\nCompany to submit to the general taxation of any jurisdiction where it is not\nthen so subject or to file in any jurisdiction any general consent to service of\nprocess.\n\n         SECTION 2.08. Certificates.\n\n              The Company will cooperate with the Holders to facilitate the\ntimely preparation and delivery of certificates representing Warrants to be sold\nand Common Stock to be issued that do not bear any restrictive legends. Such\ncertificates will be in such denominations and registered in such names as the\nHolders request at least two Business Days prior to any sale of Warrants or the\nissuance of Common Stock.\n\n                                  ARTICLE III\n\n                  REPRESENTATIONS AND WARRANTIES OF THE COMPANY\n\n              The Company represents and warrants to the Holders as follows:\n\n         SECTION 3.01. Organization and Authority of the Company.\n\n                                       6\n\n\n              The Company is a corporation duly organized, validly existing and\nin good standing under the laws of the State of Indiana and has all necessary\ncorporate power and authority to enter into this Agreement, to carry out its\nobligations under this Agreement and to consummate the transactions contemplated\nby this Agreement. The execution and delivery of this Agreement by the Company,\nthe performance by the Company of its obligations contained in this Agreement\nand the consummation by the Company of the transactions contemplated by this\nAgreement have been duly authorized by all requisite corporate action on the\npart of the Company. This Agreement has been duly executed and delivered by the\nCompany, and constitutes a valid and binding obligation of the Company\nenforceable against the Company in accordance with its terms.\n\n         SECTION 3.02. No Conflict.\n\n              The execution, delivery and performance of this Agreement by the\nCompany do not and will not (a) violate, conflict with or result in the breach\nof any provision of the Certificate of Incorporation or By-laws of the Company,\n(b) conflict with or violate any Law or Governmental Order applicable to the\nCompany or (c) conflict with, or result in any breach of, constitute a default\n(or event which with the giving of notice or lapse of time, or both, would\nbecome a default) under, require any consent under, or give to others any rights\nof termination, amendment, acceleration, suspension, revocation, or cancellation\nof, or result in the creation of any Encumbrance on any of the assets or\nproperties of the Company pursuant to, any note, bond, mortgage or indenture,\ncontract, agreement, lease, sublease, license, permit, franchise or other\ninstrument or arrangement to which the Company is a party or by which any of\nsuch assets or properties are bound or affected.\n\n                                   ARTICLE IV\n\n                                 INDEMNIFICATION\n\n         SECTION 4.01. Indemnification By The Company.\n\n              The Company will indemnify and hold harmless each of the Holders,\ndirectors, officers, employees, agents, affiliates, successors and assigns\n(each, a \"Holder Indemnitee,\" and collectively, the \"Holder Indemnitees\") from\nand against any and all losses, claims, damages, liabilities, debts,\nobligations, monetary damages, judgements, fines, fees, penalties, interest\nobligations, deficiencies, and expenses, interest, court costs, reasonable costs\nof investigators, reasonable fees and expenses of attorneys, accountant,\nfinancial advisors, engineers and other expenses, and other expenses of\nlitigation (\"Losses\") incurred or suffered in connection with, and any amount\npaid in settlement of, any action, suit or proceeding or any claim asserted to\nwhich any Holder Indemnitee may become subject under the Securities Act, the\nExchange Act or other federal or state securities law or regulation, at common\nlaw or otherwise, insofar as such Losses arise out of, result from or are based\nupon (a) any untrue statement or alleged untrue statement of a material fact\ncontained in any Registration Statement, Prospectus or preliminary prospectus or\nany amendment or supplement thereto or the omission or alleged omission to state\ntherein a material fact required to be stated therein or necessary to make the\nstatements therein, in light of\n\n                                       7\n\n\nthe circumstances under which they were made, not misleading, or (b) any\nviolation by the Company of the Securities Act or the Exchange Act, or other\nfederal or state securities law applicable to the Company and relating to any\naction or inaction required of the Company in connection with such registration.\nIn addition, the Company will reimburse any Holder Indemnitee for any reasonable\ninvestigation, legal or other expenses incurred by such Holder Indemnitee in\nconnection with investigating or defending any such Loss. Notwithstanding\nanything herein to the contrary, the Company will not be liable with respect to\nthe portion of any such Loss that (i) arises out of, results from or is based\nupon any alleged untrue statement or alleged omission made in such Registration\nStatement, preliminary Prospectus, Prospectus, or amendment or supplement in\nreliance upon and in conformity with written information furnished to the\nCompany by the Holder Indemnitee specifically for use therein or (ii)\nattributable to a Holder's (A) use of a Prospectus after being notified by the\nCompany to suspend use thereof pursuant to Section 2.01 above or (B) failure to\ndeliver a final Prospectus to the Person asserting any losses, claims, damages\nand liabilities and judgments caused by any untrue statement or alleged untrue\nstatement of a material fact contained in any preliminary prospectus, or caused\nby any omission or alleged omission to state therein a material fact required to\nbe stated therein or necessary to make the statements therein not misleading, if\nsuch material misstatement or omission or alleged material misstatement or\nomission was cured in an amended or supplemented Prospectus prepared by the\nCompany and delivered to the Holder at or prior to the time written confirmation\nof sale to such Person was required to be made. The foregoing indemnity will\nremain in full force and effect regardless of any investigation made by or on\nbehalf of the Holder, and will survive the transfer of such securities by the\nHolder.\n\n         SECTION 4.02. Indemnification By Holders.\n\n              If a Holder sells Warrants under a Prospectus that is part of a\nRegistration Statement, the Holder will indemnify and hold harmless the Company,\nits directors and each officer who signed such Registration Statement and each\nPerson who controls the Company (within the meaning of Section 15 of the\nSecurities Act) (each, a \"Controlling Person\") under the same circumstances as\nthe foregoing indemnity from the Company to the Holders but only to the extent\nthat such Losses arise out of or are based upon any untrue or allegedly untrue\nstatement of a material fact or omission or alleged omission of a material fact\nthat was made in the Prospectus, the Registration Statement, or any amendment or\nsupplement thereto, in reliance upon and in conformity with written information\nrelating to a Holder furnished to the Company by a Holder expressly for use\ntherein. In no event will the aggregate liability of a Holder exceed the amount\nof the net proceeds received by the Holder upon the sale of the Registrable\nSecurities giving rise to such indemnification obligation. Such indemnity will\nremain in full force and effect regardless of any investigation made by or on\nbehalf of the Company or such officer, director, employee or Controlling Person,\nand will survive the transfer of such securities by the Holder.\n\n         SECTION 4.03. Contribution.\n\n              If the indemnification provided for in Sections 4.01 or 4.02 is\nunavailable to an indemnified party or is insufficient to hold such indemnified\nparty harmless for any Losses in respect of which any such Section would\notherwise apply by its terms (other than by reason of exceptions provided\ntherein), then each applicable indemnifying party, in lieu of indemnifying \n\n                                       8\n\n\nsuch indemnified party, will have a joint and several obligation to contribute\nto the amount paid or payable by such indemnified party as a result of such\nLosses. Such contribution will be in such proportion as is appropriate to\nreflect the relative fault of the indemnifying party, on the one hand, and such\nindemnified party, on the other hand, in connection with the actions, statements\nor omissions that resulted in such Losses, as well as any other relevant\nequitable considerations. The relative fault of such indemnifying party, on the\none hand, and indemnified party, on the other hand, will be determined by\nreference to, among other things, whether any action in question, including any\nuntrue or alleged untrue statement of a material fact or omission or alleged\nomission to state a material fact, has been taken or made by, or relates to\ninformation supplied by, such indemnifying party or indemnified party, and the\nparties' relative intent, knowledge, access to information and opportunity to\ncorrect or prevent any such action, statement or omission. The amount paid or\npayable by a party as a result of any such Losses will be deemed to include any\ninvestigation, legal or other fees or expenses incurred by such party in\nconnection with any investigation or proceeding, to the extent such party would\nhave been indemnified for such expenses if the indemnification provided for in\nSections 4.01 or 4.02 was available to such party. In no event will the\naggregate liability of a Holder exceed the amount of the net proceeds received\nby the Holder upon the sale of the Registrable Securities giving rise to such\nindemnification obligation.\n\n         SECTION 4.04. Conduct Of Indemnification Proceedings.\n\n              An indemnified party pursuant to Section 4.01 or Section 4.02 (the\n\"Indemnified Party\") shall give the indemnifying party under such section (the\n\"Indemnifying Party\") notice of any matter that an Indemnified Party has\ndetermined has given or could give rise to a right of indemnification under this\nAgreement, within 60 days of such determination, stating the amount of the Loss,\nif known, and method of computation of the Loss, and setting forth the basis on\nwhich such right of indemnification is claimed or arises. The obligations and\nLiabilities of the Indemnifying Party under this Article IV with respect to\nLosses arising from claims of any third party that are subject to the\nindemnification provided for in this Article IV (\"Third Party Claims\") shall be\ngoverned by and contingent upon the following additional terms and conditions:\n\n              (i) If an Indemnified Party shall receive notice of any Third\n              Party Claim, the Indemnified Party shall give the Indemnifying\n              Party notice of such Third Party Claim within 30 days of the\n              receipt by the Indemnified Party of such notice; provided,\n              however, that the failure to provide such notice shall not release\n              the Indemnifying Party from any of its obligations under this\n              Article IV except to the extent the Indemnifying Party is\n              materially prejudiced by such failure and shall not relieve the\n              Indemnifying Party from any other obligation or Liability that it\n              may have to any Indemnified Party otherwise than under this\n              Article IV.\n\n              (ii) The Indemnifying Party shall assume and control the defense\n              of such Third Party Claim at its expense and through counsel of\n              its choice, provided, however, that if a conflict of interest is\n              reasonably likely to arise, that would make it inappropriate in\n              the judgment of the Indemnified Party, acting in good faith, for\n              the same counsel to represent both the\n\n                                       9\n\n\n\n              Indemnified Party and the Indemnifying Party, then the Indemnified\n              Party shall be entitled to retain its own counsel, in each\n              jurisdiction for which the Indemnified Party determines counsel is\n              required, at the expense of the Indemnifying Party.\n\n              (iii) The Indemnified Party shall cooperate with the Indemnifying\n              Party in such defense and make available to the Indemnifying Party\n              all witnesses, pertinent records, materials and information in the\n              Indemnified Party's possession or under the Indemnified Party's\n              control relating thereto as is reasonably required by the\n              Indemnifying Party.\n\n              (iv) The Indemnifying Party may settle any such Third Party Claim\n              without the prior written consent of the Indemnified Party, but\n              only if the Indemnifying Party pays all amounts arising out of\n              such settlement concurrently with the effectiveness of the\n              settlement and obtains, as a condition of any settlement or other\n              resolution, a complete release of all Indemnified Parties in\n              connection with such Third Party Claim.\n\n                                   ARTICLE V\n\n                                OTHER AGREEMENTS\n\n         SECTION 5.01. Holder Representative.\n\n              (a) The Holders agree to appoint one Person to act as their\nrepresentative, attorney in fact and proxy with respect to certain matters\nspecified in this Agreement (the \"Holder Representative\"). The parties have\ndesignated General Electric Capital Services, Inc. as the initial Holder\nRepresentative. The Holder Representative may resign at any time, and a Holder\nRepresentative may be removed at any time by the vote of a majority in interest\nof the Holders. In the event of the death, resignation or removal of the Holder\nRepresentative, a new Holder Representative shall be appointed by a vote of a\nmajority in interest of the Holders, such appointment to become effective upon\nthe written acceptance thereof by the new Holder Representative. Any failure by\na majority in interest of the Holders to appoint a new Holder Representative\nupon the death, resignation or removal of the Holder Representative shall not\nhave the effect of releasing the Holders from any liability under this\nAgreement.\n\n              (b) The Holder Representative shall have such powers and authority\nas are necessary to carry out the functions assigned to the Holder\nRepresentative under this Agreement; provided, however, that the Holder\nRepresentative will have no obligation to act on behalf of the Holders, except\nas expressly provided herein. The Holder Representative will at all times be\nentitled to rely on any directions received from a majority in interest of the\nHolders. The Holder Representative shall, at the expense of the Holders, be\nentitled to engage such counsel, experts and other agents and consultants as\nthey shall deem necessary in connection with exercising their powers and\nperforming their function hereunder and (in the absence of bad faith on the part\nof the Holder Representative) shall be entitled to conclusively rely on the\nopinions and advice of such Persons.\n\n              (c) The Holder Representative shall not be entitled to any fee,\ncommission or other\n\n                                       10\n\n\ncompensation for the performance of its services hereunder, but shall be\nentitled to the payment of all his or her expenses incurred as the Holder\nRepresentative. In connection with this Agreement, and any instrument, agreement\nor document relating hereto or thereto, and in exercising or failing to exercise\nall or any of the powers conferred upon the Holder Representative hereunder, the\nHolder Representative shall incur no responsibility whatsoever to any Holder by\nreason of any error in judgment or other act or omission performed or omitted\nhereunder or any such other agreement, instrument or document, excepting only\nresponsibility for any act or failure to act which represents willful\nmisconduct. Each Holder shall indemnify, pro rata based upon such holder's\npercentage interest, the Holder Representative against all losses, damages,\nliabilities, claims, obligations, costs and expenses, including reasonable\nattorneys', accountants' and other experts' or consultant's fees and the amount\nof any judgment against the Holder Representative, of any nature whatsoever,\narising out of or in connection with any claim, investigation, challenge, action\nor proceeding or in connection with any appeal thereof, relating to the acts or\nomissions of the Holder Representative hereunder. The foregoing indemnification\nshall not apply in the event of any action or proceeding which finally\nadjudicates the liability of the Holder Representative hereunder for his or her\ngross negligence or willful misconduct. In the event of any indemnification\nhereunder, upon written notice from Holder Representative to the Holders as to\nthe existence of a deficiency toward the payment of any such indemnification\namount, each such holder shall promptly deliver to the Holder Representative\nfull payment of his or her ratable share of the amount of such deficiency, in\naccordance with such Holder's percentage interest. In no event shall the Company\nbe responsible for any reimbursement or indemnification of the Holder\nRepresentative.\n\n              (d) All of the indemnities, immunities and powers granted to the\nHolder Representative under this Agreement shall survive the termination of this\nAgreement.\n\n              (e) Notwithstanding anything herein to the contrary, each Holder\nhereby acknowledges that the Company shall not have any responsibility or\nobligation whatsoever to any such Holder or to any other party with respect to\nor arising out of any actions taken or any inaction by the Holder\nRepresentative.\n\n              (f) The Company shall have the right to rely conclusively upon all\nactions taken or omitted to be taken by the Holder Representative pursuant to\nthis Agreement and any instrument, agreement or document relating hereto, all of\nwhich actions or omissions shall be legally binding upon all the Holders.\n\n\n                                   ARTICLE VI\n\n                                 MISCELLANEOUS\n\n         SECTION 6.01. Additional Parties.\n\n              Upon the transfer, division or combination of the Warrants, the\nholder of Warrants received in such transfer, division or combination which are\nRegistrable Securities, shall become a party to this Agreement by agreeing in\nwriting to be bound by the terms and conditions of this Agreement pursuant to an\ninstrument of assumption in a form reasonable\n\n                                       11\n\n\nacceptable to the Company and the Holder Representative and shall thereby be\ndeemed a Holder for the purposes of this Agreement.\n\n         SECTION 6.02. Amendments; Waivers.\n\n              This Agreement may not be amended, changed, supplemented, waived\nor otherwise modified or terminated, except upon the execution and delivery of a\nwritten agreement executed by the Company and the Holder Representative;\nprovided, however, that the Holder Representative shall not amend, modify or\nsupplement this Agreement in manner that is detrimental to the Holders without\nfirst obtaining the written consent of a majority in interest of the Holders to\nsuch amendment, modification or supplement; provided, further, however, that any\namendment, modification or supplement made by the Holder Representative with\nsuch consent shall bind all Holders. No course of dealing or any delay or\nfailure to exercise any right hereunder on the part of the Holder Representative\nor the Holders shall operate as a waiver of such right or otherwise prejudice\nthe rights, powers or remedies of the Holder Representative or the Holders.\n\n         SECTION 6.03. Notices.\n\n              All notices, requests, claims, demands and other communications\nunder this Agreement shall be in writing and shall be given or made (and shall\nbe deemed to have been duly given or made upon receipt) by delivery in person,\nby courier service, by telecopy, or by registered or certified mail (postage\nprepaid, return receipt requested) to the respective parties at the following\naddresses (or at such other address for a party as shall be specified in a\nnotice given in accordance with this Section 6.03):\n\n         (a) If to any Holder or to the Holder Representative at: \n                    General Electric Capital Services, Inc. \n                    120 Long Ridge Road\n                    Stamford, CT 06927 \n                    Telecopy: (203) 357-5165 \n                    Attention: Bryant Cohen\n\n                    With a copy to:\n                    General Electric Company\n                    W3A\n                    3135 Easton Turnpike\n                    Fairfield, Connecticut 06431\n                    Telecopy:  (203) 373-3008\n                    Attention: Vice President and Senior Counsel \n                    for Transactions\n\n         (b) if to the Company at:\n                    Conseco, Inc.\n                    11825 N. Pennsylvania St.\n                    Carmel, Indiana 46032\n                    Telecopy:  (317) 817-6327\n                    Attention:  General Counsel\n\n                                       12\n\n\nEach such notice or other  communication shall be deemed to have been duly given\nor served on the date on which personally delivered,  with receipt acknowledged,\ntelecopied and confirmed by telecopy answerback, or delivered by air courier, or\nthree  Business  Days  after the same  shall  have been  deposited,  appropriate\npostage prepaid, in the United States mail.\n\n         SECTION 6.04. Successors and Assigns. \n\n              This Agreement and the rights evidenced hereby shall inure to the\nbenefit of and be binding upon the successors of Company, the Holder and the\nsuccessors and assigns of Holder. The provisions of this Agreement are intended\nto be for the benefit General Electric and of all the Holders from time to time\nof this Agreement and shall be enforceable by General Electric, the Holder's\nRepresentative or any such Holder. No other Person shall have any right, benefit\nor obligation under this Agreement.\n\n         SECTION 6.05. Severability. \n\n              If one or more provisions of this Agreement are held to be\nunenforceable to any extent under applicable law, such provision shall be\ninterpreted as if it were written so as to be enforceable to the maximum extent\npermitted by law so as to effectuate the parties' intent to the maximum extent,\nand the balance of this Agreement shall be interpreted as if such provision were\nso excluded and shall be enforceable in accordance with its terms to the maximum\nextent permitted by law.\n\n         SECTION 6.06. Section and Other Headings.\n\n              The section and headings contained in this Agreement are for the\nconvenience only and shall not affect the meaning or interpretation of this\nAgreement.\n\n         SECTION 6.07. Governing Law.\n\n              This Agreement shall be governed by, construed and enforced in\naccordance with the laws of the State of New York, without regard to the\nconflict of law principles of such state.\n\n         SECTION 6.08. Remedies.\n\n              Each Holder, and the Holder Representative, in addition to being\nentitled to exercise all rights granted by law, including recovery of damages,\nwill be entitled to specific performance of its rights under this Agreement. The\nCompany agrees that monetary damages would not be adequate compensation for any\nloss incurred by reason of a breach by it of the provisions of this Agreement\nand hereby agrees to waive the defense in any action for specific performance\nthat a remedy at law would be adequate. In any action or proceeding brought to\nenforce any provision of this Agreement or where any provision hereof is validly\nasserted as a defense, the successful party shall be entitled to recover\nreasonable attorneys' fees in addition to\n\n                                       13\n\n\n\nany other available remedy.\n\n         SECTION 6.09. Counterparts.\n\n              For the convenience of the parties, any number of counterparts of\nthis Agreement may be executed by the parties hereto and each such executed\ncounterpart shall be, and shall be deemed to be, an original instrument.\n\n\n\n                         [SIGNATURES BEGIN ON NEXT PAGE]\n\n\n\n                                       14\n\n\n\n\n         IN WITNESS WHEREOF, General Electric and the Company have caused this\nAgreement to be executed on the date first written above by their respective\nofficers thereunto duly authorized.\n\n\nDated:  June 28, 2000\n\n                                    CONSECO, INC.\n\n\n\n                                    By: \/s\/ David V. Harkins\n                                        ---------------------------------------\n                                        Name:  David V. Harkins\n                                        Title: Interim Chairman and Chief\n                                                 Executive Officer\n\n\n                                    GENERAL ELECTRIC COMPANY\n\n\n\n                                    By: \/s\/ Pamela Daley\n                                        ---------------------------------------\n                                        Name:  Pamela Daley\n                                        Title: Vice President\n\n\n\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7187,7615],"corporate_contracts_industries":[9442,9452],"corporate_contracts_types":[9632,9629],"class_list":["post-43870","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-conseco-inc","corporate_contracts_companies-general-electric-co","corporate_contracts_industries-insurance__accident","corporate_contracts_industries-manufacturing__conglomerates","corporate_contracts_types-securities__registration","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43870","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43870"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43870"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43870"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43870"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}