exv10w6






Exhibit 10.6




INVESTOR RIGHTS AGREEMENT




          THIS
INVESTOR RIGHTS AGREEMENT (this “Agreement”) is
entered into as of November 13, 2009, by
and among Conseco, Inc., a Delaware corporation (the “Company”), and Paulson & Co. Inc., a
Delaware corporation on behalf of the several investment funds and accounts managed by it (the
“Stockholder”) and any other Investors agreeing in writing to be bound by the terms of this
Agreement.



W I T N E S S E T H:




          WHEREAS, pursuant to the Stock Purchase Agreement, dated as of October 13, 2009 (the
“Purchase Agreement”), by and among the Company and the Stockholder, the Company issued to
the Stockholder shares of Common Stock (as defined below) and Warrants (as defined below);



          WHEREAS, as a result of and immediately following the consummation of the transactions
contemplated by the Purchase Agreement, the Stockholder owns
16,400,000 Shares (as defined below) and
Warrants (as defined below) to purchase 5,000,000 shares of Common Stock; and



          WHEREAS, in connection with the consummation of the transactions contemplated by the Purchase
Agreement, each of the Company and the Stockholder desire to enter into this Agreement to set forth
certain rights and obligations of the Company and the Stockholder with respect to the ownership by
the Stockholder of the Company’s securities and certain other matters, all in accordance with the
terms and conditions set forth herein.



          NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:



ARTICLE I




DEFINITIONS




          SECTION 1.1 Certain Defined Terms. Capitalized terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Purchase













 







Agreement.
For purposes of this Agreement, the following
terms shall have the following meanings:



          “5% Shareholder” shall mean a Person or group of Persons that is a “5-percent
shareholder” of the Company pursuant to Treasury Regulation § 1.382-2T(g).



          “Additional Effective Date” shall have the meaning set forth in Sections 3.1(c) and
3.2(b).



          “Additional Filing Date” shall have the meanings set forth in Sections 3.1(c) and
3.2(b).



          “Adjusted Ownership” means, with respect to any Person a percentage determined by
dividing (a) the sum of (i) the number of issued and outstanding Voting Securities of the
Company owned by such person and (ii) the number of Voting Securities issuable upon the conversion
or exercise of any Equity Securities of the Company owned by such person, by (b) the sum of (i) the
number of issued and outstanding Voting Securities of the Company in the aggregate and (ii) the
number of Voting Securities issuable upon the conversion or exercise of any Equity Securities of
the Company owned by such person, then multiplying such quotient by 100%.



          “Affiliate” means, with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries, controls, is controlled by or is under common
control with, such specified Person, for so long as such Person remains so associated to the
specified Person.



          “Affiliated Assignee” shall have the meaning set forth in Section 8.9.



          “Assignment Period” shall have the meaning set forth in Section 3.1(d).



          “beneficial owner” or “beneficially own” has the meaning given such term in
Rule 13d-3 under the Exchange Act and a Person’s beneficial ownership of either Common Stock or
other Voting Securities of the Company shall be calculated in accordance with the provisions of
such Rule; provided, however, that for purposes of determining beneficial ownership, a Person shall
be deemed to be the beneficial owner of any security which may be acquired by such Person whether
within sixty (60) days or thereafter, upon the conversion, exchange or exercise of any options,
rights or other securities.



          “Black Out Period” shall have the meanings set forth in Sections 3.3(a)(i) and (ii).



          “Business Day” means any day other than a day on which banks are required or
authorized by law to be closed in the State of New York or the State of Indiana.



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          “Capital Stock” means, with respect to any Person at any time, any and all shares,
interests, participations or other equivalents (however designated, whether voting or non-voting)
of capital stock, partnership interests (whether general or limited) or equivalent ownership
interests in or issued by such Person and, with respect to the Company, includes any and all shares
of Common Stock, preferred stock and any other equity interests of the Company.



          “Claims” shall have the meaning set forth in Section 4.4(a).



          “Closing” has the meaning assigned to such term in the Purchase Agreement.



          “Closing Date” has the meaning assigned to such term in the Purchase Agreement.



          “Common Stock” means the common stock, par value $0.01 per share, of the Company and
any securities issued in respect thereof, or in substitution therefor, in connection with any stock
split, dividend, spin-off or combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization or business combination.



          “Company Affiliate” refers to any Investor during and for the three months following
such time such Investor (i) holds in excess of 10% of the Voting Securities of the Company or (ii)
has a material relationship with any director of the Company.



          “Company Board” means the Board of Directors of the Company.



          “Company Non-Affiliate” means any Investor other than a Company Affiliate.



          “Company Offering” means any public offering of securities of the Company, in whole or
in part, by the Company (other than pursuant to Form S-8 or Form S-4).



          “Confidentiality Agreement” means the Mutual Nondisclosure Agreement dated as of
August 27, 2009, by and between the Stockholder and the Company.



          “control” (including the terms “controlled by” and “under common control
with”), with respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as trustee or executor,
by contract or otherwise.



          “Covered Securities” means Common Stock and any securities convertible into or
exercisable or exchangeable for Common Stock, other than securities that are (A) Indebtedness



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issued in connection with the Company Refinancing (as such terms are defined in the Purchase
Agreement), (B) the Warrants, (C) issued by the Company pursuant to any employment contract,
employee or benefit plan, stock purchase plan, stock ownership plan, stock option or equity
compensation plan or other similar plan where stock is being issued or offered to a trust, other
entity to or for the benefit of any employees, potential employees, consultants, officers or
director of the Company, (D) issued by the Company in connection with a business combination or
other merger, acquisition or disposition transaction, (E) issued with reference to the common stock
of a Subsidiary (i.e., a carve-out transaction), (F) issued as a dividend or in connection with a
dividend investment or stockholder purchase plan or (G) issued in exchange for, or upon exercise or
conversion of, (i) currently outstanding securities or (ii) securities issued hereafter that are
securities described in clauses (A) through (F) above.



          “Demand Limitation” shall have the meaning set forth in Section 3.2.



          “Demand Notice” shall have the meaning set forth in Section 3.2.



          “Designated Securities” shall have the meaning set forth in Section 5.2.



          “Effective Date” shall have the meaning set forth in Section 3.1(c).



          “Equity Securities” means with respect to the Company, any and all shares of Capital
Stock of the Company or securities of the Company, options or other rights convertible into, or
exchangeable or exercisable for, such shares.



          “Excess Shares” shall have the meaning set forth in Section 7.1(c).



          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



          “Filing Date” shall have the meaning set forth in Section 3.1(c).



          “Holdback Period” shall have the meaning set forth in Section 4.6.



          “incur” or “incurrence” means to incur, create, assume, guarantee or otherwise
become directly or indirectly liable with respect to.



          “Indemnified Parties” shall have the meaning set forth in Section 4.4(a).



          “Initial Effective Date” shall have the meaning set forth in Section 3.1(a)(ii).



          “Initial Filing Date” shall have the meaning set forth in Section 3.1(a)(i).



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          “Investor” means any of the Stockholder Parties and the Unaffiliated Assignees.



          “Investor Representative” means the Stockholder or its Affiliated designee, or, on or
after such date as the Stockholder Parties hold less than 50% of the Registrable Securities
outstanding (determined based on the Registrable Securities Purchase Price of the Registrable
Securities then held by the Stockholder Parties as a percentage of the aggregate Registrable
Securities Purchase Price applicable to all Registrable Securities then outstanding) for a 90
consecutive day period, the Investor or group of Affiliated Investors who hold the largest single
block of Registrable Securities.



          “Liquidated Damages” shall have the meaning set forth in Section 3.3(d)(i).



          “Lock-Up Period” means the period commencing on the Closing Date and ending on the
date that is the earlier of (a) 90 days after the closing of the Public Offering (as defined in the
Purchase Agreement) and (b) six months after the Closing Date.



          “NYSE” means The New York Stock Exchange, Inc.



          “Percentage Interest” means, as of any date, the percentage equal to (i) the aggregate
number of Shares beneficially owned or otherwise held by the Stockholder Parties as of such date,
divided by (ii) the total number of outstanding shares of Company Common Stock as of such date.



          “Person” means any individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivisions thereof or any Group (as such term
is defined in Section 13(d)(3) of the Exchange Act) comprised of two or more of the foregoing.



          “Permitted Assignee” shall have the meaning set forth in Section 8.9.



          “Plan of Distribution” shall have the meaning set forth in Section 3.1(a)(i).



          “Private Placement” shall have the meaning set forth in Section 5.3(b).



          “Public Offering” has the meaning attributed thereto in the Purchase Agreement.



          “Purchase Agreement” shall have the meaning set forth in the Recitals.



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          “Qualified Offering” shall have the meaning set forth in Section 5.1.



          “Registrable Securities” means any Shares and Warrants issued to the Stockholder
pursuant to the Purchase Agreement or subsequently issued with respect thereto (including, without
limitation, upon exercise of the Warrants), any convertible Indebtedness issued in connection with
the Company Refinancing and any other shares of Common Stock now owned or hereafter acquired by the
Stockholder (including shares issued upon conversion, exercise, or otherwise in respect of any
Equity Securities), other than (i) shares of Common Stock subject to registration or registration
rights pursuant to any past, present or future obligation of the Company under any other Agreement
(other than shares of Common Stock issued upon conversion of convertible Indebtedness acquired by
Stockholder in the Company Refinancing), and (ii) in the case of any Permitted Assignee hereunder,
shares of Common Stock acquired by such Permitted Assignee that were not (or, if issuable upon
conversion or exercise of any Equity Securities of the Company, would not have been if so converted
by the prior holder) Registrable Securities immediately prior to the acquisition of such shares of
Common Stock or Equity Securities convertible thereinto. As to any particular Registrable
Securities, once issued, such Registrable Securities shall cease to be Registrable Securities when
(i) a registration statement with respect to the sale by the Investor of such securities shall have
become effective under the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (ii) such securities shall have been distributed to
the public pursuant to Rule 144 (or any successor provision), (iii) such securities are eligible to
be a sold by the holder thereof pursuant to Rule 144 without restriction or limitation thereunder
on volume or manner of sale (other than restrictions imposed hereunder) in the reasonable opinion
of counsel to the Company; (iv) such securities are sold in a private transaction in which the
transferor’s rights under this Agreement are not assigned to the transferee of the securities; or
(v) such securities shall have ceased to be outstanding. For purposes of this Agreement, any
required calculation of the amount of, or percentage of, Registrable Securities shall be based on
the number of Shares or other shares of Common Stock which are Registrable Securities.



          “Registrable Securities Purchase Price” means, with respect to any Registrable
Security, the purchase price actually paid by the Investor holding such Registrable Security (or,
if such Registrable Security was acquired upon exercise or conversion of other Equity Securities,
the exercise price or conversion price thereof), in all cases subject to adjustment for any stock
split, dividend, spin-off or combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization or business combination. Notwithstanding
the foregoing, the Registrable Securities Purchase Price for (i) the Shares shall be $4.29 per
Share and (ii) the Warrants shall be $1.50 per share of common stock issuable upon exercise of the
Warrants, in all cases subject to adjustment for any stock split, dividend, spin-off or
combination, or any reclassification, recapitalization, merger, consolidation, exchange or other
similar reorganization or business combination.



          “Registration Default” shall have the meaning set forth in Section 3.1(d).



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          “Registration Expenses” means any and all expenses incident to performance of or
compliance with Articles III, IV and V of this Agreement, including (i) all SEC and NYSE or other
securities exchange registration and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including the reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) all fees and expenses incurred in connection with
the listing of the Registrable Securities on the NYSE or any other securities exchange pursuant to
this Agreement and all rating agency fees, (v) the fees and disbursements of counsel for the
Company and of the Company’s independent public accountants, including the expenses of any special
audits and/or “cold comfort” letters required by or incident to such performance and compliance,
(vi) the reasonable fees and disbursements of counsel, (vii) any reasonable fees and disbursements
of underwriters and their counsel customarily paid by the issuers or sellers of securities
(including, without limitation, fees and expenses related to filings with the Financial Industry
Regulatory Authority, Inc.), and the reasonable fees and expenses of special experts retained in
connection with the requested registration, but excluding underwriting discounts and commissions
and transfer taxes, if any, and (viii) all expenses incurred in connection with any road shows
(including the reasonable out-of-pocket expenses of the holder of the applicable Registrable
Securities).



          “Registration Statement” means any registration statement of the Company under the
Securities Act which covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement. For the avoidance of doubt,
the definition of “Registration Statement” includes any Shelf Registration.



          “Response Period” shall have the meaning set forth in Section 3.2.



          “Rule 144” means Rule 144 (or any successor provision) under the Securities Act.



          “Scheduled Earnings Blackouts” shall have the meaning set forth in Section 3.3(a)(ii).



          “SEC” means the U.S. Securities and Exchange Commission or any other federal agency
then administering the Securities Act or the Exchange Act and other federal securities laws.



          “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



          “Sell-Down” shall have the meaning set forth in Section 5.5.



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          “Shares” shall mean (a) the Shares acquired by the Stockholder pursuant to the
Purchase Agreement, (b) any Common Stock issued to any Investor in connection with the exercise of
the Warrants, and any securities issued in respect of (a) or (b), or in substitution therefor, in
connection with any stock split, dividend, spin-off or combination, or any reclassification,
recapitalization, merger, consolidation, exchange or other similar reorganization or business
combination.



          “Shelf Registration” shall have the meaning set forth in Section 3.1(a)(i).



          “Stockholder Party” means any of the Stockholder and the Affiliated Assignees.



          “Subsidiary” means (i) any corporation of which a majority of the securities entitled
to vote generally in the election of directors thereof, at the time as of which any determination
is being made, are owned by another entity, either directly or indirectly, and (ii) any joint
venture, general or limited partnership, limited liability company or other legal entity in which
an entity is the record or beneficial owner, directly or indirectly, of a majority of the voting
interests or the general partner and, with respect to the Company.



          “Suspension Notice” shall have the meaning set forth in Section 3.3(a).



          “Transaction Agreements” shall mean the Confidentiality Agreement and the Purchase
Agreement.



          “Transfer” shall mean, with respect to any security or instrument, any voluntary or
involuntary attempt to, directly or indirectly, offer, sell, assign, transfer, grant a
participation in, pledge, hypothecate or otherwise encumber or dispose of, including, without
limitation, by way of entry into any swap or other agreement or transaction that hedges or
transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of
such security or instrument, or the consummation of any such transactions.



          “Unaffiliated Assignee” shall have the meaning set forth in Section 8.9.



          “Underwriter Cutback” shall have the meaning set forth in Section 3.2.



          “Underwritten Offering” shall have the meaning set forth in Section 3.2.



          “Voting Securities” means, at any time, shares of any class of Equity Securities which
are then entitled to vote generally in the election of Directors.



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          “Voting Threshold” means, at any time and with respect to any matter upon which
holders of any class or series of Capital Stock of the Company are then entitled to vote or
consent, 19.9% of the aggregate voting power of all Capital Stock so entitled. If approval of such
matter requires the separate vote or consent of any class(es) or series of Capital Stock of the
Company, the “Voting Threshold” will be determined in respect of, and by reference to, the
aggregate voting power of all class(es) or series of Capital Stock entitled to vote in each such
vote or consent.



          “Warrants” shall mean the warrants to acquire an aggregate 5,000,000 shares of Common
Stock purchased by the Stockholder pursuant to the Purchase Agreement.



          “Withheld Shares” shall have the meaning set forth in Section 7.1(b).



          SECTION 1.2 Other Definitional Provisions. (a) The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Article and Section references are to
this Agreement unless otherwise specified.



               (b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



ARTICLE II




RESTRICTIONS ON TRANSFER




          SECTION 2.1 Transfer of the Shares. No Investor shall Transfer any Shares or Warrants
without the Company’s written consent except (i) any Transfer by a Stockholder Party to any
Affiliate of the Stockholder who agrees to be bound by all of the provisions of this Agreement as a
Stockholder Party (subject to Section 8.9), which Affiliate of the Stockholder will then be a
Stockholder Party entitled to further transfer as a Stockholder Party hereunder to Affiliates of
the Stockholder in accordance with the terms hereof, or (ii) (x) upon the expiration of the Lock-Up
Period, (y) pursuant to a Transfer described in Section 2.3(b) or (z) in the event of a Sell-Down
and, in the case of clauses (x), (y) and (z):



               (a) pursuant to an effective registration statement under the Securities Act;



               (b) pursuant to Rule 144; or



               (c) upon receipt by the Company of an opinion of counsel reasonably satisfactory to the
Company that such Transfer is exempt from registration under the Securities Act and applicable
state laws.



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          SECTION 2.2 Restrictive Legends. Each of the Investors hereby acknowledges and agrees that,
during the term of this Agreement, each of the certificates or book-entry confirmations
representing Shares or Warrants shall be subject to stop transfer instructions and shall include
the applicable portion(s) of the legends set forth below:




“THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR CONFIRMATION HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF (“TRANSFERRED”) EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER.”


In the event that any Shares, Warrants or Common Stock issuable upon exercise of the Warrants or
upon conversion of convertible Indebtedness acquired by Stockholder in the Company Refinancing (i)
are no longer subject to the transfer restrictions set forth in this Agreement, (ii) are
Transferred in a transaction registered under the Act, (iii) are Transferred in a transaction
exempt from the registration requirements of the Act, and upon delivery to the Company of such
documents as it may reasonably request with respect to such exemption, (iv) upon an Investor’s
request and receipt by the Company and its transfer agent of an opinion of Investor’s counsel
reasonably satisfactory to the Company and its transfer agent to the effect that a “private
placement” legend is no longer required under the Act and applicable state laws or (v) upon an
Investor’s request and receipt by the Company and its transfer agent of the certificate attached
hereto as Exhibit A certifying that such shares of Common Stock are eligible for resale without
limitation under Rule 144 (other than Company information requirements of Rule 144(c)), the Company
shall promptly issue new certificates or book-entry confirmations representing such Shares or
Warrants, at the expense of the Company. The Company shall cause its counsel to issue a legal
opinion, if required (or requested by the Company’s transfer agent), to effect the removal of such
legend or notation, as applicable, in accordance with this Section 2.2.




          SECTION 2.3 Restriction on Certain Transactions (a). From and after the date hereof,
each Investor hereby covenants and agrees that it shall not, without the prior written consent of
the Company, Transfer any of the Shares to any person if such Transfer, taken together with any
other Transfers of shares of Common Stock by the Investor to the same person or any of its
Affiliates at any time, would, to the knowledge of the Investor, cause such Person and its
Affiliates to become a 5% Shareholder. Notwithstanding this Section 2.3, nothing shall prevent any
Stockholder Party from making a Transfer in violation of Section 2.3 under the following
circumstances:



               (b) Transfers
 with the consent of the Company Board (such consent not to be withheld unless
the Company Board determines in good faith that such Transfer will jeopardize or endanger the
availability to the Company of its net operating loss carryforwards to be used to offset its
taxable income in such year or future years and the basis for such determination is provided in
writing to the applicable Stockholder Party) to any Stockholder Party if the transferee agrees in
writing for the benefit of the Company (with a copy thereof to be



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furnished to the Company) to be
bound by the terms of this Agreement and provided that, in conjunction therewith, the transferee
makes to the Company, at and as of the date of such transfer, each of the representations and
warranties contained in Sections 4.1, 4.2 and 4.7 of the Purchase Agreement as if such assignee
were “Purchaser” therein;



               (c) Transfers pursuant to a merger, tender offer or exchange offer or other business
combination, acquisition of assets or similar transaction or change of control involving the
Company or any Subsidiary of the Company so long as (i) such transaction has been approved by the
Company Board or (ii) none of the Stockholder Parties (x) is a member of the group (as such term is
defined in Section 13(d)(3) of the Exchange Act) conducting such transaction or (y) has taken any
actions otherwise prohibited pursuant to Section 6.2 hereunder in connection with such transaction;
and



               (d) Transfers in connection with the sale of shares in a widely-distributed Underwritten
Offering.



          SECTION 2.4 Transfers Not In Compliance. A purported or attempted Transfer of Shares or
Warrants by an Investor, and any purported assignment of Investor’s rights and obligations
hereunder, that does not comply with Section 2.1, Section 2.2, Section 2.3 and Section 8.9 shall be
void ab initio and the purported transferee or successor by operation of law shall not be deemed to
be a stockholder or warrantholder of the Company for any purpose and shall not be entitled to any
of the rights of (i) in the case of a Transfer of Shares, a stockholder, including, without
limitation, the right to vote any Shares entitled to vote or to receive a certificate or
certificates for the Shares or any dividends or other distributions on or with respect to the
Shares or (ii) in the case of a Transfer of Warrants, a warrantholder, including, without
limitation, the right to exercise such Warrants or to receive shares of Common Stock in respect
thereof.



ARTICLE III




REGISTRATION RIGHTS WITH RESPECT TO

THE REGISTRABLE SECURITIES




          SECTION 3.1 Shelf Registration Statement Matters.



               (a) Shelf Registration Statement. Subject to Section 3.3, the Company shall:




               (i) on or prior to the 60th day after the Closing (the “Initial
Filing Date”), prepare and file with the SEC a “shelf” Registration Statement
covering the resale of 100% of the Registrable Securities (a “Shelf
Registration”) on such Initial Filing Date for an offering to be made on a
continuous basis



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pursuant to Rule 415 under the Securities Act (or any successor
provisions), which Shelf Registration shall be on Form S-3 (except if the Company is
not then eligible to register for resale the Registrable Securities on Form S-3, in
which case such registration shall be on Form S-1 or another reasonably appropriate
form) and shall contain substantially the “Plan of Distribution” attached
hereto as Annex A;




               (ii) use reasonable best efforts to cause the Shelf Registration to become
effective as soon as practicable after such filing, but in no event later than the
120th day after the Closing (the “Initial Effective Date”);
provided, however, that in the event the Company is notified by the SEC that the
Shelf Registration will not be reviewed or is no longer subject to further review
and comments, the Initial Effective Date shall be the fifth Business Day following
the date on which the Company is so notified if such date precedes the date
otherwise required above;




               (iii) use reasonable best efforts to maintain continuously in effect,
supplement and amend, if necessary, the Shelf Registration, as required by the
instructions applicable to such registration form or by the Securities Act, until
there are no remaining Registrable Securities;




               (iv) furnish, upon request, to the holders of the Registrable Securities to
which the Shelf Registration relates copies of any supplement or amendment to such
Shelf Registration prior to such supplement or amendment being used and/or filed
with the SEC; and




               (v) pay all Registration Expenses in connection with the Shelf Registration,
whether or not it becomes effective, and whether all, some or none of the
Registrable Securities to which it relates are sold pursuant to it.



               (b) Effective Shelf Registration Statement. (i) If at any time, the Shelf Registration
ceases to be effective, the Company shall, subject to Section 3.3, file, not later than 30 days
after such prior Shelf Registration ceased to be Effective (a “New Filing Date”), and use
its reasonable best efforts to cause to become effective a new Shelf Registration as soon as
practicable, but not later than the 90th day after such New Filing Date (a “New
Effective Date”);
provided, however, that in the event the Company is notified by the SEC that the Shelf
Registration will not be reviewed or is no longer subject to further review or comments, the New
Effective Date shall be the fifth Business Day following the date on which the Company is so
notified if such date precedes the date otherwise required above.




               (ii) If, after any Shelf Registration has become effective, it is interfered
with by any stop order, injunction or other order or requirement of the



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SEC or other
governmental agency or authority, the Company shall use its reasonable best efforts
to prevent the issuance of any stop order suspending the effectiveness of the Shelf
Registration or of any order preventing or suspending the use of any prospectus and,
if any such order is issued, to obtain the withdrawal of any such order at the
earliest possible moment, but not later than the 90th day after such
order is issued (a “Withdrawal Date”).



               (c) Additional Registrable Securities. At any time that the Company knows that the
number of Registrable Securities at such time exceeds 115% of the number of shares of Common Stock
then registered on all Registration Statements applicable to the Registrable Securities, the
Company shall, subject to Section 3.3, use its reasonable best efforts to amend any existing
Registration Statement, or to file an additional Registration Statement, to register for resale by
the Holders of not less than 100% of the Registrable Securities as soon as reasonably practicable,
but not later than the 30th day after the Company first knows of such circumstance (an
“Additional Filing Date” and together with the Initial Filing Date, the New Filing Date, a
“Filing Date”), and shall use its reasonable best efforts to cause such amendment or
additional Registration Statement to be declared effective, as soon as practicable, but not later
than the 60th day after the Additional Filing Date (an “Additional Effective
Date” and together with the Initial Effective Date and the New Effective Date and the
Withdrawal Date, an “Effective Date”); provided, however that in the event the Company is
notified by the SEC that such additional Registration Statement will not be reviewed or is no
longer subject to further review and comments, such Additional Effective Date as to such
Registration Statement shall be the fifth Business Day following the date on which the Company is
so notified if such date precedes the date otherwise required above.



               (d) Delay Payments. (i) The Company and each Investor each agree that the Investor
will suffer damages, and it would not be feasible to ascertain the extent of such damages with
precision, if the Company fails to fulfill its obligations under Article III hereof. Subject in all
cases to Section 3.3 (including any applicable Blackout Period imposed in accordance therewith) and
Section 4.6 (including any Holdback Period imposed in accordance therewith, whether such period is
pursuant to the agreement set forth in Section 4.6 or a separate agreement with the underwriters of
any Company Offering or Underwritten Offering), if (A) a Registration Statement is not filed on or
prior to any Filing Date applicable thereto, (B) a Registration Statement is not declared effective
by the SEC or any order of a governmental authority preventing or suspending the use of any
prospectus is not lifted prior to any Effective Date applicable thereto, (C) the Company fails to
file with the SEC a request for acceleration of effectiveness in accordance with Rule 461
promulgated under the Securities Act, within five
Business Days after the date that the Company is notified in writing by the SEC that a
Registration Statement will not be “reviewed,” or is not subject to further review, (D) after the
Effective Date, the Shares are not listed on the NYSE, (E) after the Effective Date, a Registration
Statement required to be effective hereunder ceases for any reason to remain effective (without
being succeeded immediately by a replacement Registration Statement filed and declared effective)
or usable (excluding during the Lock-Up Period, and excluding as a result of a post-effective
amendment thereto that is required by applicable law in order to cause a Permitted Assignee
hereunder to be named as a selling securityholder therein, provided that such
post-



13









 






effective
amendment is filed by the Company within 10 Business Days after the Company receiving notice from
any Investor that such post-effective amendment is required (any such 10 Business Day period, an
“Assignment Period”) for the resale of Registrable Securities, or the Investors are
otherwise unable to effect the resale of any Registrable Securities hereunder as a result of a
breach by the Company of its obligations hereunder, in each case for such period of time (excluding
the duration of any Black Out Period applicable to such Registrable Securities, any Holdback
Period, any Assignment Period or the Lock-up Period) as to any Registrable Securities for which any
Registration Statement is then required to be effective hereunder (each of the events referred to
in clauses (A) through (E), a “Registration Default”) the Company shall pay to any Investor
holding any Registrable Securities not eligible for resale as a result of such Registration
Default, for the duration of such Registration Default as it applies to such Registrable Securities
held by such Investor:





                    (1) if such Investor is a Company Affiliate, an amount (the “Affiliate
Liquidated Damages”) equal to (i) one-half of one percent (0.5%) per year of the
Registrable Securities Purchase Price applicable to such Registrable Securities for
the period up to and including the 70th day in any 360 consecutive-day
period during which a Registration Default has occurred and is continuing, payable
in cash on each January 1 and July 1 and calculated on the basis of a 360
calendar-day year consisting of twelve 30 calendar-day months, and (ii) one percent
(1.0%) per 30 days of the Registrable Securities Purchase Price applicable to such
Registrable Securities for the period exceeding the 70th day in any 360
consecutive-day period during which a Registration Default has occurred and is
continuing, payable in cash on the second business day of each calendar month in
respect of payments accruing through the last day of the preceding calendar month,
with late payments accruing interest at a rate of 18% per annum (or such lesser
maximum amount that is permitted to be paid by applicable law), compounding on each
payment date; or




                    (2) If such Investor is a Company Non-Affiliate, an amount equal to one percent
(1.0%) per 30 days of the Registrable Securities Purchase Price applicable to such
Registrable Securities, payable in cash on the second business day of each calendar
month in respect of payments accruing through the last day of the preceding calendar
month, with late payments accruing interest at a rate of 18% per annum (or such
lesser maximum amount that is permitted to be paid by applicable law), compounding
on each payment date (the
payments described in clauses (1) and (2) of this Section 3.3(d)(i), the
“Liquidated Damages”)




               (ii) Notwithstanding anything to the contrary herein, in no event shall the
Company be liable for Liquidated Damages in excess of $8,000,000 in any calendar
year, pro-rated for the remaining portion of the calendar year in which this
Agreement is entered into. Each of the Company and each Investor agree that the
Liquidated Damages provided for in this Section



14









 






3.1(d) constitute a reasonable
estimate of the damages that may be incurred by the Investor by reason of a
Registration Default and that such Liquidated Damages are the only monetary damages
available to the Stockholder in the event of a Registration Default.
Notwithstanding anything to the contrary set forth in this Section 3.1, no event
shall be considered a Registration Default hereunder if such event or the primary
cause thereof (i) was consented to in writing by the Stockholder or Investors
holding in excess of 50% of the then-outstanding Registrable Securities (determined
based on the Registrable Securities Purchase Price applicable to the
then-outstanding Registrable Securities), or (ii) results (and shall not be
considered a Registration Default for as long as it continues to result) primarily
from (x) any breach or delay in performance by any Investor of any of its
obligations set forth in this Agreement, (y) an Investor’s objection pursuant to
Section 4.1(c) or (z) any delay caused or requested by any underwriter or
underwriters in connection with an Underwritten Offering, including as a result of
any holdback period contemplated by Section 4.6 hereof.



          SECTION 3.2 Underwritten Offerings; Demand Registration. Subject to Section 3.3
(including any Blackout Period imposed in accordance therewith) and 4.6 (including any Holdback
Period imposed in accordance therewith, whether such period is pursuant to the agreement set forth
in Section 4.6 or a separate agreement with the underwriters of any Company Offering or
Underwritten Offering), the Stockholder or, if the Stockholder has assigned its rights under this
Section 3.2 in accordance with the terms of this Agreement, Investors holding more than 50% of the
Registrable Securities at such time (determined based on the Registrable Securities Purchase Price
applicable to the then-outstanding Registrable Securities)) may deliver a notice to the Company
stating that it wishes to effect an underwritten offering of all or part of its Registrable
Securities (an “Underwritten Offering”) and stating the number of the Registrable
Securities to be included in the Underwritten Offering (a “Demand Notice”). The Company
shall, promptly after its receipt of a Demand Notice, give all other Investors written notice of
such request. Each such Investor may, by delivery of written notice to the Company within twenty
(20) days after the Company’s delivery of notice to such Investor (the “Response Period”),
request that all or any portion of such Investor’s Registrable Securities be included in such
Underwritten Offering. Notwithstanding the foregoing, the Stockholder and the other Investors,
collectively, shall be entitled to deliver to the Company no more than three (3) Demand Notices in
the aggregate (the “Demand Limitation”); provided that no Demand Notice shall be counted
against the Demand Limitation unless and until the Registration Statement filed pursuant to such
Demand Notice is
declared effective and the Registrable Securities registered thereunder have been sold (other
than any such Registrable Securities excluded from such Underwritten Offering as a result of a
determination by the underwriter that marketing factors required a limitation on the number of
shares to be underwritten in such offering (an “Underwriter Cutback”), except in the event
that (i) the Stockholder or Investors holding of more than 50% of the Registrable Securities
requested to be registered in such Underwritten Offering (determined based on the Registrable
Securities Purchase Price applicable to such Registrable Securities) elect to abandon such offering
or (ii) the Underwritten Offering is not consummated primarily as a result of the action, or
failure to act, of one or more Investors holding Registrable Securities requested to be included
therein. Notwithstanding the foregoing, if, in connection with an Underwritten Offering requested
pursuant to the final Demand Notice permitted under



15









 







the Demand Limitation set forth above, (i) the
Stockholder Parties request that all of their remaining Registrable Securities be included in such
Underwritten Offering, and (ii) solely as a result of an Underwriter Cutback, the Stockholder
Parties are required to sell less than 75% of such Registrable Securities requested to be
distributed in such Underwritten Offering, then the Stockholder Parties will be entitled,
collectively, to request one additional Underwritten Offering with respect to all of their
remaining Registrable Securities, in which all Investors will be entitled to participate as if in
connection with, and pursuant to the procedures applicable to, the delivery of a Demand Notice;
provided that, in connection with such additional Underwritten Offering, any Underwriter Cutbacks
shall be applied first, pro rata, with respect to the Registrable Securities of Unaffiliated
Assignees requested to be included therein, and thereafter, pro rata, with respect to the
Registrable Securities of the Stockholder Parties requested to be included therein.



          Upon expiration of such Response Period (or, if the Lock-Up Period has not then expired, upon
expiration of the Lock-Up Period), and subject to Section 3.3 hereof, as soon as reasonably
practicable and subject to such Underwriter Cutbacks as may be requested by the managing
underwriter(s) of such Underwritten Offering:



               (a) if there is, at such time, an effective Shelf Registration in respect of the Registrable
Securities, the Company shall promptly amend or supplement the Shelf Registration if and as may be
necessary in order to enable such Registrable Securities to be distributed pursuant to an
Underwritten Offering, but in any event no later than 30 days after the expiration of the Response
Period, and shall use its reasonable best efforts to cause such amendment to become effective as
soon as practicable after such filing, but in any event no later than 90 days after the expiration
of the Response Period; or



               (b) if there is, at such time, no effective Shelf Registration in effect in respect of the
Registrable Securities, the Company shall:




               (i) cause to be prepared and to file a Registration Statement as promptly as
reasonably practicable after expiration of the Response Period, but in any event no
later than 30 days thereafter;




               (ii) use reasonable best efforts to cause such Registration Statement to become
effective as soon as practicable after filing, but in any event no later than 90
days after expiration of the Response Period;




               (iii) use reasonable best efforts to maintain in effect, supplement and amend,
if necessary, the Registration Statement, as required by the instructions applicable
to such registration form or by the Securities Act for the period required to
consummate the Underwritten Offering;



16









 






               (iv) furnish, upon request, to the holders of the Registrable Securities to
which the Registration Statement relates copies of any supplement or amendment to
such Registration Statement prior to such supplement or amendment being used and/or
filed with the SEC; and




               (v) pay all Registration Expenses in connection with the Registration
Statement, whether or not it becomes effective, and whether all, some or none of the
Registrable Securities to which it relates are sold pursuant to it.


The date that is thirty (30) days after the expiration of the Response Period shall be an
“Additional Filing Date” for purposes of Section 3.1(d) hereunder, and the date that is
ninety (90) days after the expiration of the Response Period shall be an “Additional
Effective Date” for purposes of Section 3.1(d) hereunder.




          SECTION 3.3 Suspension of Registration Rights. (a) Notwithstanding anything to the
contrary herein, if the Company shall at any time furnish to the Stockholder a certificate signed
by any of its authorized officers (a “Suspension Notice”) stating that:




               (i) the Company has pending or in process a material transaction, the
disclosure of which would, in the good faith judgment of the Company Board, after
consultation with its outside counsel, materially and adversely affect the Company;
or




               (ii) the Company Board has made the good faith determination (after
consultation with counsel and including, without limitation, recurring earnings
blackout periods established by the Company Board or a designated committee thereof
(“Scheduled Earnings Blackouts”)) (i) that use or continued use of any
proposed or effective Registration Statement for purposes of effecting offers or
sales of Registrable Securities pursuant thereto would require,
under the Securities Act, premature disclosure in such Registration Statement
(or the prospectus relating thereto) of material, non-public information (without
disclosing the specific material, non-public information, unless the Stockholder
specifically requests in writing to receive such material, non-public information),
(ii) that such premature disclosure would not be in the best interest of the Company
and (iii) that it is therefore essential to defer the filing or to suspend the use
of such Registration Statement (and the prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Securities pursuant thereto,


then the right of the Investors to require the Company to file any Registration Statement
or, after the filing thereof, use any Registration Statement (and the prospectus relating
thereto) for purposes of effecting offers or sales of Registrable Securities pursuant
thereto


17









 






shall be suspended for a period (a “Black Out Period”) of not more than (i)
with respect to any Company Affiliate, 180 days in any 360 consecutive-day period (and no
more than 45 consecutive days in any 360 consecutive day period except, in the case of a
Suspension Notice delivered, or a Scheduled Earnings Blackout designated, in respect of the
Company’s year-end earnings reports, no more than 65 consecutive days after delivery of
such Suspension Notice or start of such Scheduled Earnings Black Out), (ii) with respect to
any Company Non-Affiliate, 90 days in any 360 consecutive-day period (and no more than 45
consecutive days in any 360 consecutive day period except, in the case of a Suspension
Notice delivered, or Scheduled Earnings Blackout designated, in respect of the Company’s
year-end earnings reports, no more than 65 consecutive days after delivery of such
Suspension Notice or start of such Scheduled Earnings Black Out). For avoidance of doubt,
with respect to any Registrable Security, no Registration Default shall be applicable to
such Registrable Security during any Black Out Period permitted to be imposed on the holder
of such Registrable Security pursuant to this Section 3.3. Notwithstanding anything to the
contrary in this Section 3.3(a), the Company shall not impose any Black Out Period,
including any Scheduled Earnings Black Out, in a manner that is more restrictive
(including, without limitation, as to duration) than the comparable restrictions the
Company may impose on Transfers of the Company’s Equity Securities by its directors and
senior executive officers.




               (b) During any Black Out Period, no Investor shall offer or sell any Registrable Securities
pursuant to or in reliance upon any Registration Statement (or the prospectus relating thereto)
filed by the Company. Notwithstanding the foregoing, if the public announcement of such material,
nonpublic information is made during a Black Out Period, then the Black Out Period shall terminate
without any further action of the parties and the Company shall immediately notify the Investors of
such termination. Except in connection with any notice required to be provided hereunder or in
connection with any reasonable response to unsolicited written or oral requests from a Stockholder
Party or its representatives and affiliates for information, the Company shall use its reasonable
best efforts to refrain from providing any Stockholder Party with any material, non-public
information without such Stockholder Party’s prior written consent.



          SECTION 3.4 Incidental Registration Rights. If the Company at any time proposes to
offer Covered Securities in a registered Company Offering for its own account, each such time it
will promptly give written notice to the Investors of its intention so to do. Upon the written
request of any Investor, received by the Company within thirty (30) days after delivery of any such
notice by the Company, requesting to register any or all of its Registrable Securities, the Company
will use its reasonable best efforts to cause such Registrable Securities to be included in the
securities to be covered by the Registration Statement proposed to be filed in connection with the
registered Company Offering to the extent required to permit the sale or other disposition by such
Investor of such Registrable Securities. If such registered Company Offering involves an
underwriting, the Company shall so advise the Investors as a part of the written notice given
pursuant to this Section 3.4. In such event, the right of any Investor to registration pursuant to
this Section 3.4 shall be conditioned upon such Investor’s participation in such underwriting to
the extent provided herein. If any Investor proposes to distribute any or all



18









 







of its Registrable
Securities through such underwritten Company Offering, it shall (together with the Company and any
other Investors so participating) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other
provision of this Section 3.4, if there is an Underwriter Cutback, such limitation will be imposed
first pro rata with respect to all securities whose holders have a contractual, incidental right to
include such securities in the Registration Statement (including, without limitation, any
Investors) and as to which inclusion has been requested pursuant to such right. The Company shall
be obligated to include in such Registration Statement only such limited portion of Registrable
Securities with respect to which any Investor has requested inclusion hereunder. Notwithstanding
the foregoing provisions, the Company may withdraw any Registration Statement referred to in this
Section 3.4 without thereby incurring any liability to any Investor. If any Investor disapproves
of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the
Company and the underwriter or in such other manner as may be required by any underwriting
agreement to which the Investor becomes a party in connection with such underwriting. Any
Registrable Securities or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration and the Company Offering, and the Registration Statement
applicable to such registration shall not be available for use by such Investor in respect of such
withdrawn Registrable Securities.



ARTICLE IV




REGISTRATION PROCEDURES




          SECTION 4.1 Registration Procedures (a). If and whenever the Company is required to
effect or cause the registration of any Registrable Securities under the Securities Act under this
Agreement:



               (b) The Company will use its reasonable best efforts to cause the Registration Statement
applicable to such Registrable Securities to become effective and, subject to Section 3.3 hereof,
the Company will prepare and file with the SEC such amendments and supplements to the Registration
Statement and the prospectus or prospectus supplement used in connection therewith as may be
necessary (i) in the case of a Shelf Registration, to keep such Shelf Registration continuously
effective and usable for resale of the Registrable Securities for a period from the date of its
initial effectiveness until such time as there are no such Registrable Securities remaining
(including by refiling the Shelf Registration (or a new Shelf Registration) if the initial Shelf
Registration expires, (ii) in the case of any other Registration Statement, to keep such
Registration Statement effective and usable for resale of all of the Registrable Securities
intended to be sold pursuant thereto and (iii) to comply with the
provisions of the Securities Act
with respect to the disposition of the Registrable Securities covered by such Registration
Statement. The Company shall use its reasonable best efforts to cause any amendment to any
Registration Statement to be declared effective by the SEC as soon as practicable following the
filing thereof with the
SEC. In the event that the Company is a well-known seasoned issuer (as
defined under Rule 405 of the Act) at the time of the filing of the Shelf Registration with the



19









 







SEC, such Shelf Registration shall be designated by the Company as an automatic Shelf Registration.



               (c) Not less than five (5) Business Days prior to the filing of each Registration Statement
and not less than one (1) Business Day prior to the filing of any related prospectus or any
amendment or supplement thereto (including any document that would be incorporated or deemed to be
incorporated therein by reference), the Company shall, upon request of any Investor (but not if
such Investor does not so request) (i) furnish to such Investor drafts of all such documents
proposed to be filed, which documents (other than those incorporated or deemed to be incorporated
by reference) will be subject to the review of such Investor, and (ii) cause its officers and
directors, counsel and independent certified public accountants to respond, during normal business
hours and upon reasonable notice, to such inquiries as shall be necessary, in the reasonable
opinion of counsel to such Investor, to conduct a reasonable investigation within the meaning of
the Securities Act. If such Investor reasonably and in good faith objects in writing and with
specificity to any proposed disclosure in a draft Registration Statement or prospectus (no later
than three (3) Business Days after the Stockholder has been furnished copies thereof) or any
amendments or supplements thereto (no later than one (1) Business Day after the Stockholder has
been furnished copies thereof) (i) regarding such Investor or (ii) on the basis that the
disclosure, as proposed, contains one or more untrue statements of a material fact or omissions to
state any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading, in each case whether such
disclosure is contained in the “selling stockholder” section thereof or otherwise, the Company
shall not file such Registration Statement or such prospectus or amendments or supplements thereto
until it has taken such steps as it deems reasonably appropriate to address the Investor’s
concerns.



               (d) The Company will furnish to each Investor such number of copies of the applicable
Registration Statement and each such amendment and supplement thereto (including in each case all
exhibits) and of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents as such
Investor may reasonably request in order to facilitate the disposition of Registrable Securities
owned or to be distributed by such Investor.



               (e) The Company shall use its reasonable best efforts to register and qualify the Registrable
Securities under such other securities or “blue sky” laws of such jurisdictions within the United
States as shall be reasonably requested by the Investors, to keep such registration or
qualification in effect for so long as such Registrable Securities remain outstanding, and to take
any other action which may be reasonably necessary to enable the Investors to consummate the
disposition in such jurisdictions within the United States of the Registrable Securities; provided
that the Company shall not be required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in any such states or
jurisdictions.



20









 





               (f) After the filing of any Registration Statement, the Company will promptly notify the
Investors of any stop order issued or threatened by the SEC and shall use its reasonable best
efforts to prevent the entry of such stop order or to remove it if entered.



               (g) The Company shall use its reasonable best efforts to cause the Shares and the Common Stock
issued upon exercise of the Warrants to be listed on the NYSE or such other securities exchange on
which the Common Stock is then listed. The Company will comply in all material respects with the
Company’s reporting, filing and other obligations under the NYSE Listed Company Manual or bylaws or
other rules of the NYSE or comparable regulations of such other securities exchanges on which the
Common Stock is then listed. The Company will not take any action which would be reasonably
expected to result in the delisting or suspension of trading of the Common Stock, including the
Shares and the Common Stock issued upon exercise of the Warrants, on the NYSE or a comparable
national securities exchange.



               (h) The Company shall promptly notify the Investors:




               (i) of the existence of any fact of which the Company is aware or the
occurrence of an event or the passage of time that makes the financial statements
included in a Registration Statement ineligible for inclusion therein or any
statement made in a Registration Statement or related prospectus untrue in any
material respect or that otherwise requires the preparation of a supplement or
amendment thereto so that, as thereafter amended or supplemented, such Registration
Statement or related prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary
to make the statement therein, in light of the circumstances under which they are
made, not misleading and promptly make available to the Investors a reasonable
number of copies of any such supplement or amendment; provided that any Suspension
Notice (including, with respect to Scheduled Earnings
Blackouts, any such Suspension Notice describing the Company’s Scheduled
Earnings Blackout policy) shall satisfy the notice requirements hereunder;




               (ii) when any Registration Statement filed pursuant to this Agreement or any
amendment thereto (other than through the incorporation by reference therein of any
report, statement or other document required to be filed pursuant to the Exchange
Act and the rules and regulations thereunder) has been filed with the SEC and when
such Registration Statement or any post-effective amendment thereto has become
effective;




               (iii) of any request by the SEC for amendments or supplements to any
Registration Statement or the prospectus included therein; and



21









 






               (iv) of the receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Common Stock for sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose
or the issuance of any stop order suspending the effectiveness of any registration
statement.



               (i) The Company shall use reasonable best efforts to procure the cooperation of the Company’s
transfer agent in settling any offering or sale of Registrable Securities, including with respect
to the transfer of physical stock certificates into book-entry form in accordance with any
procedures reasonably requested by any Investor.



               (j) In connection with an Underwritten Offering, the Company shall:




               (i) enter into such customary agreements, including a customary underwriting
agreement, in each case in form and substance reasonably satisfactory to the
Company, which may include indemnification provisions in favor of underwriters and
other Persons in addition to, or in substitution for the provisions of Section 4.4
hereof, and take such other actions as the Stockholder Parties, the Investor
Representative or the underwriters may reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;




               (ii) obtain one or more comfort letters, dated such date or dates as are
customary for the Company in the context of an underwritten Company Offering,
addressed to any underwriters of the Underwritten Offering, signed by the Company’s
independent public accountants, in form and covering such matters of the type
customarily covered by comfort letters delivered by the Company in connection with
underwritten Company Offerings as the lead underwriters may reasonably request;




               (iii) make available for inspection by the Stockholder, by the Investor
Representative, by any underwriter participating in any disposition to be effected
pursuant to an Underwritten Offering and by any attorney, accountant or other agent
retained by the Stockholder, the Investor Representative or any such underwriter,
all pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company’s officers, directors and
employees to supply all information reasonably requested by the Stockholder, the
Investor Representative or any such underwriter, attorney, accountant or agent in
connection with such Underwritten Offering;




               (iv) if requested by the managing underwriter or agent or the Stockholder or
the Investor Representative, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing



22









 






underwriter or agent or
Investor Representative or the Stockholder reasonably requests to be included
therein, including, with respect to the number of Registrable Securities being sold
by the Investors to such underwriter or agent, the purchase price being paid
therefor by such underwriter or agent and with respect to any other terms of the
underwritten offering and make all required filings of such prospectus supplement or
post-effective amendment as soon as reasonably practicable after being notified of
the matters incorporated in such prospectus supplement or post-effective amendment;




               (v) use its reasonable best efforts to obtain for delivery to the underwriter
or agent an opinion or opinions from counsel for the Company in customary form and
in form, substance and scope reasonably satisfactory to such underwriters or agents
and their counsel;




               (vi) use its commercially reasonable efforts (taking into account the interests
of the Company) to make available the executive officers of the Company to
participate with the Stockholder, the Investor Representative and any underwriters
in any customary “road shows” or other selling efforts that may be reasonably
requested by the Stockholder and the Investor Representative, on the one hand, or
managing underwriters, on the other hand, in connection with an Underwritten
Offering.



          SECTION 4.2 Information Supplied. The Company may require any Investor to furnish the
Company with, and such Investor shall promptly furnish, such information regarding the Investor and
pertinent to the disclosure requirements reasonably relating to the registration and the
distribution of the Registrable Securities as the Company may from time to time reasonably request
in writing.



          SECTION 4.3 Restrictions on Disposition. Each Investor agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4.1(h), such Investor will forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering such Registrable
Securities until such Investor’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4.1(h), and, if so directed by the Company, such Investor will deliver to
the Company all copies, other than permanent file copies then in such Investor’s possession, of the
prospectus covering such Registrable Securities current at the time of receipt of such notice;
provided that, for the duration of any such suspension of the use of the Registration Statement
that is not included as a Black Out Period, Liquidated Damages shall accrue and be payable pursuant
to Section 3.1(d) hereof.



          SECTION 4.4 Indemnification. (a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to Articles III or IV of this Agreement, the Company
shall, and it hereby does, indemnify and hold harmless, to the extent permitted by law, the seller
of any Registrable Securities covered by such registration statement, each Affiliate of such seller
and their respective directors, officers, employees and stockholders or members or general and
limited partners (and any director, officer, Affiliate, employee, stockholder and



23









 







controlling
Person of any of the foregoing), each Person who participates as an underwriter in the offering or
sale of such securities and each other Person, if any, who controls such seller or any such
underwriter within the meaning of the Securities Act (collectively, the “Indemnified
Parties”), against any and all losses, claims, damages or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect thereof (“Claims”) and
expenses (including reasonable attorney’s fees and reasonable expenses of investigation) to which
such Indemnified Party may become subject under the Securities Act, common law or otherwise,
insofar as such Claims or expenses arise out of, relate to or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, or (ii) any omission
or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading; provided, that the Company shall not be liable to any Indemnified
Party in any such case to the extent that any such Claim or expense arises out of, relates to or is
based upon any untrue statement or alleged untrue statement or omission or alleged omission made in
such registration statement or amendment or supplement thereto or in any such preliminary, final or
summary prospectus in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller specifically for use in the preparation thereof; and,
provided, further, that the Company will not be liable in any such case to the extent, but only to
the extent, that the foregoing indemnity with respect to any untrue statement contained in or
omitted from a registration statement or the prospectus shall not inure to the benefit of any party
(or any person controlling such party) who is obligated to deliver a prospectus in transactions in
a security as to which a registration statement has been filed pursuant to the Securities Act and
from whom the person asserting any such Damages purchased any of the Registrable Securities to the
extent that it is finally judicially determined that such Damages resulted solely from the fact
that such party sold Registrable Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the registration statement or the
prospectus, as amended or supplemented, and (x) the Company shall have previously and timely
furnished sufficient copies of the registration statement or prospectus, as so amended or
supplemented, to such party in accordance with this Agreement and (y) the registration statement or
prospectus, as so amended or supplemented, would have corrected such untrue statement or omission
of a material fact. The Company’s obligation to indemnify for Claims and expenses hereunder is
irrespective of whether the Indemnified Party has itself paid such Claims or expenses.



               (b) As a condition to including any Registrable Securities in any registration statement filed
in accordance with Sections 3.2 or 3.4 herein, the Company shall have received a customary
agreement from the prospective seller of such Registrable Securities or any underwriter to
indemnify and hold harmless (in the same manner and to the same extent as set forth in Section
4.4(a)) the Company and all other prospective sellers or any underwriter, as the case may be, with
respect to any untrue statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, if such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such seller or underwriter specifically for use in the
preparation of such registration statement,



24









 




preliminary, final or summary prospectus or amendment
or supplement, or a document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of the
Company or any of the prospective sellers, or any of their respective Affiliates, directors,
officers or controlling Persons and shall survive the transfer of securities by any seller. In no
event shall the liability of any selling holder of Registrable Securities hereunder be greater in
amount than the dollar amount of the proceeds received by such holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.




          (c) Each indemnified party hereunder shall give prompt written notice to the indemnifying
party of any Claim commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify the indemnifying party shall not relieve such indemnifying party from any
liability which it may have under the indemnity provided in this Section 4.4, unless and to the
extent the indemnifying party shall have been actually and materially prejudiced by the failure of
such indemnified party to so notify the indemnifying party. Such notice shall describe in
reasonable detail such Claim. In case any Claim is brought against an indemnified party, the
indemnified party shall be entitled to hire, at its own expense, separate counsel and participate
in the defense thereof. If the indemnifying party so elects within a reasonable time after receipt
of notice, the indemnifying party may assume the defense of the Claim at the indemnifying party’s
own expense with counsel chosen by the indemnifying party and approved by the indemnified party,
which approval shall not be unreasonably withheld, and the indemnified party may participate in
such defense at its own expense; provided, however, that the indemnifying party will not settle or
compromise any Claim, or consent to the entry of any judgment with respect to any such pending or
threatened Claim, without the written consent of the indemnified party unless such settlement,
compromise or consent secures the unconditional release of the indemnified party from all
liabilities arising out of such Claim; provided, further, that if the defendants in any such Claim
include both the indemnified party
and the indemnifying party and the indemnified party reasonably determines, based upon advice
of legal counsel, that such Claim involves a conflict of interest (other than one of a monetary
nature) that would reasonably be expected to make it inappropriate for the same counsel to
represent both the indemnifying party and the indemnified party, then the indemnifying party shall
not be entitled to assume the defense of the indemnified party and the indemnified party shall be
entitled to separate counsel at the indemnifying party’s expense, which counsel shall be chosen by
the indemnified party and approved by the indemnifying party, which approval shall not be
unreasonably withheld; and provided, further, that it is understood that the indemnifying party
shall not be liable for the fees, charges and disbursements of more than one separate firm for the
indemnified parties. If the indemnifying party assumes the defense of any Claim, all indemnified
parties shall thereafter deliver to the indemnifying party copies of all notices and documents
(including court papers) received by such indemnified parties relating to the Claim, and each
indemnified party shall cooperate in the defense or prosecution of such Claim. Such cooperation
shall include the retention and (upon the indemnifying party’s request) the provision to the
indemnifying party of records and information that are reasonably available to the Indemnified
Party and that are reasonably relevant to such Claim and making employees available on a mutually
convenient basis to provide additional information and explanation of any material provided
hereunder. If the indemnifying party is not entitled to assume the defense of such Claim as a
result of the second proviso to the fourth sentence of this Section 4.4(c), the



25









 







indemnifying
party’s counsel shall be entitled to conduct the indemnifying party’s defense and counsel for the
indemnified party shall be entitled to conduct the defense of the indemnified party, it being
understood that both such counsel will cooperate with each other, to the extent feasible in light
of the conflict of interest or different available legal defenses, to conduct the defense of such
action or proceeding as efficiently as possible. If the indemnifying party is not so entitled to
assume the defense of such action or does not assume the defense, after having received the notice
referred to in the first sentence of this Section 4.4(c), the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party; in that event, however, the
indemnifying party will not be liable for any settlement of any Claim effected without the written
consent of the indemnifying party, which may not be unreasonably withheld, delayed or conditioned.
If the indemnifying party is entitled to assume, and assumes, the defense of an action or
proceeding in accordance with this Section 4.4(c), the indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified party incurred thereafter in connection with
that action or proceeding except as set forth in the proviso in the fourth sentence of this Section
4.4(c). Unless and until a final judgment is rendered that an indemnified party is not entitled to
the costs of defense under the provisions of this Section 4.4(c), the indemnifying party shall
reimburse, promptly as they are incurred, the indemnified party’s costs of defense. The
indemnifying party’s obligation to indemnify the indemnified parties for Claims hereunder is
irrespective of whether the indemnified party has itself made payments in respect of such Claims.



               (d) (i) If the indemnification provided for in this Section 4.4 from the indemnifying party
is unavailable to an indemnified party hereunder in respect of any Claim or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such Claim or
expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions which resulted in
such Claim or expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by reference to, among
other things, whether 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 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 such
action. The amount paid or payable by a party under this Section 4.4(d) as a result of the Claim
and expenses referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any action or proceeding.




               (ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4(d) were determined by pro rata allocation
or by any other method of allocation which does not take account of the equitable
considerations referred to in Section 4.4(d)(i). No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.



26









 





               (e) Indemnification similar to that specified in this Section 4.4 (with appropriate
modifications) shall be given by the Company and each seller of Registrable Securities with respect
to any required registration or other qualification of securities under any law or with any
governmental authority other than as required by the Securities Act.



               (f) The obligations of the parties under this Section 4.4 shall be in addition to any
liability which any party may otherwise have to any other party.



          SECTION 4.5 Required Reports. So long as there are Registrable Securities, the Company
shall not terminate its status as an issuer required to file reports under the Exchange Act (even
if the Exchange Act or the rules and regulations thereunder would permit such termination) and the
Company agrees that it will use reasonable best efforts to timely file the reports required to be
filed by it under the Securities Act and the Exchange Act and it will take such further action as
any Investor may reasonably request, all to the extent required from time to time to enable such
Investor to sell shares of Registrable Securities pursuant to this Agreement, including without
registration under the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar
rule or regulation hereafter adopted by the SEC. Upon the request of any Investor, the Company
will deliver to such Investor a written statement as to whether it has complied with such
requirements.



          SECTION 4.6 Holdback Agreement. If any Company Offering or any sale of securities in
connection with a registration under Article III hereof shall be in connection with an underwritten
public offering, each of the
Company and each Investor agree and, if so requested by any underwriter in connection with such
offering or sale, shall enter into a customary agreement with such underwriter agreeing, not to
effect any sale or distribution, including, in the case of Investors, any sale pursuant to Rule 144
under the Securities Act, of any such securities of the Company, or options or other rights
convertible into, or exchangeable or exercisable for, such securities (other than as part of such
underwritten public offering), within seven (7) days before, or ninety (90) days (or such lesser
period as the managing underwriters may permit) after, the effective date of any such Company
Offering or registration pursuant to Article III or the closing of any sale of securities in
connection with a registration under Section 3.2 (except as part of any such registration or sale)
(such period, a “Holdback Period”); provided, that, notwithstanding the foregoing, with
respect to any Company Offering, the Investors shall have no obligation under this Section 4.6, and
shall not be required to enter into any agreement with an underwriter pursuant to this Section 4.6,
in each case that is more restrictive than the obligations imposed on and agreements required to be
entered into by the directors and senior executive officers of the Company in connection with such
Company Offering and/or in each case that would restrict or prohibit a Sell-Down.



          SECTION 4.7 No Inconsistent Agreement. The Company represents and warrants that it will not
enter into, or cause or permit any of its Subsidiaries to enter into, any agreement which conflicts
with or limits or prohibits the exercise of the rights granted to the holders of Registrable
Securities in this Agreement.



27









 





ARTICLE V




PREEMPTIVE RIGHTS; SHARE REPURCHASES




          SECTION 5.1 Company Sale of Covered Securities. If the Company offers to sell Covered
Securities in a public or private offering of Covered Securities solely for cash (a “Qualified
Offering”), the Stockholder Parties shall be afforded the opportunity to acquire from the
Company, for the same price and on the same terms as such Covered Securities are offered, in the
aggregate up to the amount of Covered Securities required to enable it to maintain its then-current
Percentage Interest, but solely to the extent that (i) any such issuance of shares of Covered
Securities would not result in the issuance of Covered Securities that would require a vote of the
stockholders of the Company pursuant to the rules of the NYSE and (ii) the Company Board determines
in its good faith discretion that the acquisition of such Covered Shares by the Stockholder will
not jeopardize or endanger the availability to the Company of its net operating loss carryforwards
to be used to offset its taxable income in such year or future years, and the basis for such
determination shall be provided to the Stockholder in writing; provided, however, that this
Section 5.1 shall not apply to any Qualified Offering the gross proceeds of which, together with
the aggregate gross proceeds of any other Qualified Offering of Covered Securities after the date
hereof, do not exceed $1,000,000. For the avoidance of doubt, to the extent that the Stockholder
Parties’ acquisition of Covered Securities required to enable the Stockholder Parties to maintain
their then-current Percentage Interest would result in an event described in clause (i) or (ii) of
the preceding sentence, the Stockholder Parties may nonetheless acquire up to the maximum amount
that would not result in the
occurrence of such event. In addition prior to the date of this Agreement, the Company and the
Company Board will have taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any distribution under a
rights agreement) or other similar anti takeover provision under the Company’s certificate of
incorporation (or similar charter documents) or other agreements or the laws of its state of
incorporation (including, without limitation, Section 203 of the Delaware General Corporation Law)
that is or could become applicable to Stockholder as a result of the Stockholder exercising its
rights under this Section 5.1 to acquire Covered Securities as set forth herein; provided that the
Company and the Company Board shall not be required to take any such action in respect of the
Company’s Section 382 Rights Agreement, dated as of January 20, 2009, between the Company and
American Stock Transfer & Trust Company, LLC (the “382 Rights Agreement”) (which will not
be applicable to the extent clause (ii) above does not apply).



          SECTION 5.2 Notice. Prior to making any Qualified Offering of Covered Securities, the
Company shall give the Stockholder written notice of its intention (including, in the case of
a registered public offering and to the extent possible, a copy of the prospectus included in
the registration statement filed in respect of such), describing, to the extent then known,
the anticipated amount of securities, price (or, in the case of a registered public offering,
an estimated range of prices) and other material terms upon which the Company proposes to
offer the same. The Stockholder shall have ten (10) days from the provision of such notice to
notify the Company in writing that it intends to exercise such preemptive purchase rights and
as to the amount of Covered Securities the Stockholder desires to purchase, up to the maximum



28









 







amount calculated pursuant to Section 5.1 (the “Designated Securities”). Such notice
shall constitute a non-binding indication of interest of the Stockholder to purchase the
amount of Designated Securities so specified (or a proportionately lesser amount if the amount
of Covered Securities to be offered in such Qualified Offering is subsequently reduced) at the
price (or range of prices) and other terms set forth in the Company’s notice to it. The
failure to respond during such ten (10) day period shall constitute a waiver of preemptive
rights in respect of such offering. Any notice provided by the Company pursuant to this
Section 5.2, and any information provided to the Stockholder otherwise in connection with such
Qualified Offering, shall be subject to the terms of the Confidentiality Agreement applicable
to “Evaluation Material” thereunder until the 90th day following the consummation
of any such Qualified Offering of Covered Securities, regardless of any termination thereof.
If the sale of Covered Securities contemplated by the Qualified Offering described in such
notice delivered to the Stockholder (i) is not subject to a binding agreement between the
Company and the purchasers of such Covered Securities, (ii) is not otherwise consummated
within thirty (30) days of delivery of such notice to the Stockholder, or (iii) if the terms
of such binding agreement in respect of the Qualified Offering are materially amended, or if
the terms relating to price are amended whatsoever, then such Qualified Offering shall again
be subject to the requirements of this Article V.



          SECTION 5.3 Purchase Mechanism. (a) If the Stockholder exercises its preemptive purchase rights provided in this Article V with
respect to a Qualified Offering that is an underwritten public offering or a private offering made
to qualified institutional buyers (as such term is defined in Rule 144A under the Act) for resale
pursuant to Rule 144A under the Act, the Company shall offer the Stockholder, if such underwritten
public offering or Rule l44A offering is consummated, the Designated Securities (as adjusted
downward or, at the Stockholder’s option, upward to reflect the actual size of such offering when
priced) at the same price and on the same terms as the Covered Securities are offered to the
initial purchasers in such offering and shall provide written notice of such price to the
Stockholder as soon as practicable prior to such consummation.



               (b) If the Stockholder exercises its preemptive rights provided in this Article V with respect
to a Qualified Offering that is not an underwritten public offering or Rule 144A offering (a
“Private Placement”), the closing of the purchase of the Covered Securities with respect to
which such right has been exercised shall be conditioned on the consummation of the Private
Placement giving rise to such preemptive purchase rights and shall take place simultaneously with
the closing of the Private Placement or on such other date as the Company and the Stockholder shall
agree in writing; provided that the actual amount of Covered Securities to be sold to the
Stockholder pursuant to its exercise of preemptive rights hereunder shall be reduced if the
aggregate amount of Covered Securities sold in the Private Placement is reduced and, at the option
of the Stockholder (to be exercised by delivery of written notice to the Company within five (5)
Business Days of receipt of notice of such increase), shall be increased if such aggregate amount
of Covered Securities sold in the Private Placement is increased. In connection with its purchase
of Designated Securities, the Stockholder shall, if it continues to wish to exercise its preemptive
rights with respect to such offering, execute an agreement containing representations, warranties
and agreements of the Stockholder that are substantially



29









 




similar in all material respects to the
agreements executed by other purchasers in such Private Placement.




               (c) If, prior to consummation of Qualified Offering, the terms of the proposed issuance change
with the result that the price is less than the minimum price or more than the maximum price set
forth in the notice contemplated by Section 5.2 or the other principal terms are more favorable in
any material respect to the prospective purchaser than those set forth in such notice, it shall be
necessary for a separate notice to be furnished, and the terms and provisions of this Article V
separately complied with.



          SECTION 5.4 Termination of Preemptive Rights. Anything to the contrary in this
Article V notwithstanding, the preemptive right to purchase Covered Securities granted by this
Article V shall terminate as of and not be available for any offering that commences at any time
after the date on which the Stockholder Transfers any Shares, other than Transfers (i) to
Affiliates of the Stockholder or (ii) pursuant to a Sell-Down.



          SECTION 5.5 Notice of Share Repurchase, Redemption. Unless otherwise instructed in writing by the Stockholder, following the date hereof and
until the earlier of (i) the fifth anniversary of the date hereof, (ii) such time as the
Stockholder Parties’ Adjusted Ownership no longer exceeds 10% and (iii) such time as the
Stockholder Parties no longer hold any indebtedness of the Company, the Company will not, directly
or indirectly, redeem, purchase or otherwise acquire, any of its Voting Securities without
providing the Stockholder at least 90 days prior written notice, which notice shall not be
delivered prior to the date of public announcement of such proposed redemption or repurchase.
Beginning on the date of delivery of such notice until the first to occur of (i) the date such
share repurchase, redemption or acquisition is commenced or (ii) the date such Stockholder receives
notice from the Company that it has abandoned the repurchase, redemption or acquisition disclosed
in such notice, the Stockholder Parties shall be permitted to Transfer Equity Securities of the
Company without regard to the Lock-Up Period and shall have no obligation pursuant to Section 4.6
hereof, in each case to the extent reasonably required to ensure that no Stockholder Party, or a
direct or indirect owner of such Stockholder Party (that is a non-U.S. person) is deemed to be a
10% or more owner of the Company for purposes of the portfolio interest exemption from withholding
as set forth in Sections 871 and 881 of the Internal Revenue Code of 1986, as amended (a
“Sell-Down”). Notwithstanding the foregoing, the Company shall not, directly or
indirectly, redeem, purchase or otherwise acquire any of its Voting Securities prior to the date
which is 90 days following the closing of the Public Offering.



ARTICLE VI




STANDSTILL




          SECTION 6.1 No Acquisition. Prior to the first anniversary of the date of this
Agreement, each of the Investors shall not, and shall cause each of their respective controlled




30











 




Affiliates not to, directly or indirectly, acquire, or agree to acquire, by purchase or otherwise,
beneficial ownership of any Capital Stock of the Company (except pursuant to the Purchase
Agreement, the provisions of Article V of this Agreement, the exchange of rights issued pursuant to
the 382 Rights Agreement, the exercise of the Warrants, or the conversion of any convertible
indebtedness acquired in connection with the Company Refinancing or by way of any stock split,
dividend, spin-off, combination, reclassification or recapitalization of the Company and its Common
Stock) to the extent such acquisition would result in such Investor and its controlled Affiliates
beneficially owning in excess of 19.9% of the Voting Securities of the Company; provided that, for
purposes of this Section 6.1, “beneficial ownership” shall have the meaning given to such term in
Rule 13d-3 of the Exchange Act without regard to the proviso included in the definition of
“beneficial ownership” set forth in Section 1.1 hereof. For the avoidance of doubt, this
prohibition shall not apply to acquisitions of (i) the Company’s convertible Indebtedness (or the
conversion of such convertible Indebtedness into Capital Stock of the Company) issued in connection
with the Company Refinancing, (ii) the Warrants (or the receipt of the Common Stock of the Company
upon exercise of the Warrants), (iii) in connection with any exchange of rights under the 382
Rights Agreement; (iv) purchases of Covered Securities in a Qualified Offering pursuant to and
subject to the limitations set forth in Article V hereof and (v) purchases of Common Stock on the
market if, and to the extent, required to maintain such Investor’s Ownership Percentage after
giving effect to any preemptive rights available to such Investor pursuant to Article V.
Notwithstanding anything to the contrary herein, nothing in this Agreement shall be construed as an
exemption of any Investor from the provisions of the 382 Rights Agreement, or a waiver of the
applicability thereof, absent (and solely to the extent of) an express determination of exemption
or inapplicability by the Company Board in accordance with the terms of the 382 Rights Agreement.




          SECTION 6.2 Other Restrictions. Each of the Investors shall not, and will cause its
controlled Affiliates not to, directly or indirectly, alone or in concert with others, unless
specifically requested in writing by the Chief Executive Officer of the Company or by a resolution
of the Company Board, take any of the actions set forth below (or take any action that would
require the Company to make an announcement regarding any of the following:




               (a) effect, seek, offer, engage in, propose (whether publicly or otherwise) or cause or
participate in, or assist any other Person to effect, seek, engage in, offer, cause, propose
(whether publicly or otherwise) or participate in:




               (i) any acquisition of beneficial ownership of Voting Securities of the Company
which would result in a breach of Section 6.1 of this Agreement;




               (ii) any tender or exchange offer, merger, consolidation, share exchange,
business combination, recapitalization, restructuring, liquidation, dissolution or
other extraordinary transaction involving the Company or any material portion of its
business or any purchase of all or any substantial part of the assets of the Company
or any material portion of its business; provided that, if



31









 







such transaction is being conducted by a third-party unaffiliated with such
Investor, the foregoing shall not prevent such Investor from tendering, exchanging,
exercising voting rights in respect of, or otherwise exercising rights in respect of
and opting to receive the benefit of such transactions in the same manner as offered
to other holders of the Company’s Common Stock not participating in the “group” (as
such term is used in Section 13(d)(3) of the Exchange Act) conducting such
transaction; or




               (iii) any “solicitation” of “proxies” (as such terms are used in the proxy
rules of the SEC, but without regard to the exclusion set forth in Section
14a-1(l)(2)(iv) from the definition of “solicitation”) with respect to the Company
or any of its Affiliates or any action resulting in the Stockholder, or any of its
controlled Affiliates, or such other Person becoming a “participant” in any
“election contest” (as such terms are used in the proxy rules of the SEC) with
respect to the Company or any of its Subsidiaries.



               (b) propose any matter for submission to a vote of stockholders of the Company or any of its
Affiliates;



               (c) seek election to, seek to place a representative on, or seek the removal of, any director
of the Company or any of its Affiliates;



               (d) except as contemplated by this Agreement and except for proxies granted to Affiliates of
the Stockholder (and their respective employees, attorneys and agents (other than Persons who are
attorneys and agents solely as a result of the granting of such proxy), grant any proxy with
respect to any Capital Stock of the Company;



               (e) form, join or participate in a “group” (as such term is used in Section 13(d)(3) of the
Exchange Act) with respect to any Capital Stock of the Company, or deposit any Capital Stock of the
Company in a voting trust or, except as contemplated by this Agreement, subject any Capital Stock
of the Company to any arrangement or agreement with respect to the voting of such Capital Stock or
other agreement having similar effect;



               (f) take any other actions to seek to affect the control of the Company Board or the
management of the Company or any of its Affiliates, including publicly suggesting or announcing its
willingness to engage in or have another Person engage in a transaction that could reasonably be
expected to result in a business combination or to increase the percentage of Capital Stock owned
by the Investor; provided that from and after the first anniversary of this Agreement, each
Investor and its Affiliates shall not be prohibited by this clause (g) from acquiring Capital Stock
of the Company;



32









 





               (g) enter into any discussions, negotiations, arrangements or understandings with any Persons
with respect to any of the foregoing, or advise, assist, encourage or seek to persuade others to
take any action with respect to any of the foregoing; or



               (h) disclose to any Person (other than an Affiliate) or otherwise induce, encourage, discuss
or facilitate, any intention, plan or arrangement inconsistent with the foregoing or with the
restrictions on transfer set forth in Article II or form any such intention which would result in
the Company or any of its Affiliates or any Investor or any of its Affiliates being required to
make any such disclosure in any filing with a Governmental Authority or being required to make a
public announcement with respect thereto;


provided, however, that notwithstanding the foregoing restrictions, each Investor shall be entitled
to make any disclosure required by securities or similar disclosure laws, as advised in writing by
outside counsel reasonably familiar with such matters; provided, further that the Stockholder shall
not be prohibited from requesting that the Company Board consider nominating a designee of the
Stockholder for election to the Company Board and, if so elected, from assisting such designee in
the conduct of such designee’s office and the fulfillment of such designee’s fiduciary duties in
such office. Subject to Section 7.1, nothing in this Agreement, including this Section 6.2, will
prohibit, limit, condition or delay each Investor’s ability (i) to vote (including by proxy) or
consent with respect to any matter properly brought before stockholders of the Company for a vote
or consent, or (ii) to tender or exchange its shares); provided, further, that the Stockholder
shall not be required to take any such action as a result of the request of the Company or a
resolution of the Company Board, but, if so requested, prior to receipt of written notice from the
Company to the contrary, the Stockholder may continue to take such actions that are reasonably
related to the matters addressed in, reasonably in furtherance of, and not in conflict with, such
request or resolution and, if available, the publicly stated position of the Company with respect
to the matters addressed therein.




          SECTION 6.3 Termination of Standstill. The provisions of this Article VI (except for
the last sentence of Section 6.1 hereof) shall terminate in respect of any individual Investor in
the event (i) the Company Board approves a tender offer for 50% or more of the outstanding Capital
Stock of the Company (provided that if such offer is withdrawn or expires without being
consummated, this Article VI shall be reinstated),(ii) it is publicly disclosed that Capital Stock
representing 33-1/3% or more of the voting power of the Company’s stockholders have been acquired
by any Person (including any group of Persons acting in concert) other than such Investor and its
Affiliates, (iii) of (a) the filing by the Company of a voluntary petition in bankruptcy; (b) the
entry of an order of relief in any bankruptcy or insolvency proceeding in respect of the Company or
the entry of an order that the Company is a bankrupt or insolvent; or (c) any involuntary
proceeding seeking liquidation, reorganization or other relief against the Company under any
bankruptcy, insolvency or other similar law now or hereafter in effect that has not been dismissed
60 days after the commencement thereof, (iv) of the public announcement of any merger,
consolidation, share exchange, business combination, recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction, in each case involving a change of control of the
Company or substantially all of its business or any



33









 






purchase of all or substantially all of the assets of the Company or substantially all of its
business, in each case conducted by any Person (including any group of Persons acting in concert)
other than such Investor and its Affiliates, (v) solely with respect to the Stockholder Parties,
the Stockholder Parties’ aggregate Adjusted Ownership has not exceeded 9.9% for 120 consecutive
days or (vi) of the first anniversary of the first date upon which the Warrants may be exercised in
accordance with their terms.




ARTICLE VII




VOTING LIMITATION




          SECTION 7.1 Limitation on Voting. At any meeting of the Company’s stockholders,
however called, including any adjournment or postponement thereof, or in connection with any
written consent of the Company’s stockholders, unless otherwise consented to by the Company Board:




               (a) each Investor shall, and shall cause its controlled Affiliates to, appear at each such
meeting or otherwise cause all Capital Stock of the Company beneficially owned or owned of record
by such Investor or its controlled Affiliates entitled to vote on any matter at such meeting to be
duly counted as present thereat for purposes of calculating a quorum (to the extent such shares of
Capital Stock may be so counted);



               (b) with respect to any proposals requiring approval by the affirmative vote of a percentage
of the votes cast in respect of such proposal, in person or by proxy, at such meeting, each
Investor shall, and shall cause its controlled Affiliates to, vote, or cause to be voted,
collectively, that number of shares of its and their Capital Stock entitled to be voted in respect
of such proposal representing no more than the Voting Threshold in respect of such proposal, and
shall cause any remaining shares of its and their Capital Stock entitled to vote thereon to be
properly withheld (but not cast as abstaining votes) from voting on such matter (such remaining
shares, the “Withheld Shares”);



               (c) with respect to any proposals at any such meeting requiring approval by the affirmative
vote of a percentage of the outstanding shares of Capital Stock or of aggregate voting power
entitled to vote in respect of such proposal, in person or by proxy, at such meeting, or in respect
of any written consent of the Company’s stockholders, or any proposal in respect of which the
provisions of Section 7.1(b) cannot or do not apply, each Investor shall, and shall cause its
controlled Affiliates to, vote, or cause to be voted, all shares of its and their Capital Stock
entitled to be voted in respect of such proposal in excess of the Voting Threshold (such excess
shares, the “Excess Shares”) in the same proportion as all other votes cast on such
proposal (including any votes cast by such Investor and its controlled Affiliates other than Excess
Shares).



34









 





          SECTION 7.2 No Inconsistent Agreements. Each Investor hereby represents, warrants,
covenants and agrees that, except for this Agreement, the neither such Investor nor any of its
controlled Affiliates (a) have entered into, and none shall enter into at any time while this
Agreement remains in effect, any voting agreement or voting trust with respect to such Investor’s
or its controlled Affiliates’ Capital Stock of the Company and (b) have granted, and none shall
grant at any time while this Agreement remains in effect, a proxy, consent or power of attorney
with respect to such Investor’s or its controlled Affiliates’ Capital Stock of the Company that is
inconsistent with this Agreement.




          SECTION 7.3 Termination of Voting Rights. The provisions of this Article VII shall
terminate in respect of any individual Investor in the event (i) the Company Board approves a
tender offer for 50% or more of the outstanding Capital Stock of the Company (provided that if such
offer is withdrawn or expires without being consummated, this Article VII shall be reinstated),
(ii) it is publicly disclosed that Capital Stock representing 33-1/3% or more of the voting power
of the Company’s stockholders has been acquired by any Person (including any group of Persons
acting in concert) other than such Investor and its Affiliates, (iii) of (a) the filing by the
Company of a voluntary petition in bankruptcy; (b) the entry of an order of relief in any
bankruptcy or insolvency proceeding in respect of the Company or the entry of an order that the
Company is bankrupt or insolvent; or (c) any involuntary proceeding seeking liquidation,
reorganization or other relief against the Company under any bankruptcy, insolvency or other
similar law now or hereafter in effect that has not been dismissed 60 days after the commencement
thereof, (iv) of the public announcement of any merger, consolidation, share exchange, business
combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction, in each case involving a change of control of the Company or substantially all of its
business or any purchase of all or substantially all of the assets of the Company or substantially
all of its business, in each case conducted by any Person (including any group of Persons acting in
concert) other than such Investor and its Affiliates, or (v) solely with respect to the Stockholder
Parties, upon the date that the Stockholder Parties’ aggregate Adjusted Ownership has not exceeded
9.9% for 120 consecutive days.




ARTICLE VIII




MISCELLANEOUS




          SECTION 8.1 Governing Law; Venue. This Agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance with the laws of the
State of New York (except to the extent that mandatory provisions of Delaware law are applicable).
The parties hereby irrevocably submit to the jurisdiction of the courts of the State of New York
and the federal courts of the United States of America located in the State of New York solely for
the purposes of any suit, action or other proceeding between any of the parties hereto arising out
of this Agreement or any transaction contemplated hereby, and hereby waive, and agree to assert, as
a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it
is not subject thereto or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that the venue thereof




35









 







may not be appropriate or that this Agreement may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be
heard and determined in such New York state or federal court. The parties hereby consent to and
grant any such court jurisdiction over the person of such parties and over the subject matter of
such dispute and agree that mailing of process or other papers in connection with any such action
or proceeding in the manner provided in Section 8.5 or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.




          SECTION 8.2 Attorney’s Fees. In the event of any action of any kind between the parties
hereto with respect to this Agreement, the prevailing party shall be entitled to recover from
the other party its reasonable attorney’s fees and related costs, expenses and disbursements
incurred in connection with such action.




          SECTION 8.3 Termination. The provisions of Article III and Article IV of this Agreement
shall terminate upon the earliest to occur of (a) the date when no Registrable Securities remain
outstanding, (b) June 30, 2017 and (c), solely with respect to any individual Investor, when such
Investor no longer holds any Registrable Securities or Warrants. The remaining provisions of
this agreement shall terminate in accordance with their terms, or, if no such termination is
provided for hereunder, shall survive until terminated by written agreement of each of the parties
hereto. Nothing herein shall relieve any party from any liability for the breach of any provisions
set forth in this Agreement.




          SECTION 8.4 Entire Agreement; Amendments. This Agreement and the Transaction Agreements
constitute the full and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is sought.




          SECTION 8.5 Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other will be in writing and will be deemed to have been duly given
(a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation
of receipt, (b) on the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the third Business Day following the date of mailing
if delivered by registered or certified mail, return receipt requested, postage prepaid. All
notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice.




36









 





          If to the Stockholder to it at:



Paulson & Co. Inc.

1251 Avenue of the Americas, 50th Floor

New York, New York 10020

Attn: Mr. Michael Waldorf

Telephone: (212) 956-2221

Fax: (212) 351-5886



with a copy to (which copy alone shall not constitute notice):



Kleinberg, Kaplan, Wolff & Cohen, P.C.

551 Fifth Avenue, 18th Floor

New York, New York 10176

Attn: Stephen M. Schultz, Esq.

Telephone: (212) 986-6000

Fax: (212) 986-8866




          If to the Company:



Conseco, Inc.

11825 North Pennsylvania Street

Carmel, Indiana 46032

Attn: General Counsel

Telephone: (317) 817-2889

Fax: (317) 817-2826



with a copy to (which copy alone shall not constitute notice):



Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Attn: Gary I. Horowitz, Esq.

Telephone: (212) 455-2000

Fax: (212) 455-2502




          SECTION 8.6 Specific Performance. The Company and the Stockholder acknowledge and agree
that irreparable damage to the other party would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that each party shall be entitled to an injunction, injunctions
or other equitable relief, without the necessity of posting a bond, to prevent or cure breaches of
the provisions of this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which the parties may be entitled by law or equity.




37









 








          SECTION 8.7 Delays or Omissions. It is agreed that no delay or omission to exercise any
right, power or remedy accruing to any party, upon any breach, default or noncompliance by another
party under this Agreement, shall impair any such right, power or remedy, nor shall it be construed
to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or
in any similar breach, default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character on the part of any party hereto of any
breach, default or noncompliance under this Agreement or any waiver on such party’s part of any
provisions or conditions of this Agreement, must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this Agreement, by law,
or otherwise afforded to any party, shall be cumulative and not alternative.




          SECTION 8.8 No Third Party Beneficiaries. Other than as set forth in Section 4.4,
nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than
the parties hereto or their respective successors, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.




          SECTION 8.9 Successors, Assigns; Transferees. This Agreement shall bind and inure to
the benefit of and be enforceable by the parties hereto and their respective successors and
permitted assigns and transferees. Except as expressly provided herein, this Agreement may not be
assigned by any party hereunder except by operation of law or with the prior written consent of the
Company, in the case of any assignment by an Investor, or of the Stockholder, in the case of the
Company, except that an Investor hereunder may assign the rights to cause the Company to register
any Registrable Securities that such Investor Transfers to a transferee pursuant to and in
accordance with this Agreement (but, for so long as such Investor holds Equity Securities of the
Company, no such Transfer or assignment shall relieve such Investor of its obligations hereunder),
if such transferee (a) (i) acquires at least 10% of the Registrable Securities (other than
convertible Indebtedness issued in connection with the Company Refinancing) pursuant to such
transfer and (ii) as a result of such acquisition, beneficially owns at least 10% of the Common
Stock of the Company (excluding convertible Indebtedness issued in connection with the Company
Refinancing) or (b) is an Affiliate of the Stockholder (a transferee described in clause (a), an
“Unaffiliated Assignee”, a transferee described in clause (b), an “Affiliated
Assignee”, and collectively, the “Permitted Assignees”), in each case subject to the
succeeding sentence. Any purported Permitted Assignee shall agree to be bound by and subject to
the obligations attributable to an Investor and of a holder of Registrable Securities found in
Articles I, II, III, IV, VI, VII and VIII of this Agreement but excluding any rights and
obligations attributable solely to the Stockholder or, in the case of an Unaffiliated Assignee, to
an Affiliated Assignee) and, solely with respect to purported Permitted Assignees that are
Affiliates of the Stockholder, Article V hereof, and as a condition to such transferee’s receipt of
such shares and such rights, such transferee, if not already bound in writing by such provisions
hereof, shall execute an agreement in form and substance reasonably satisfactory to the Company,
agreeing to be bound by such provisions hereof. For avoidance of doubt, however, no such transfer
and assignment shall (i) act to duplicate any limited rights to which the Stockholder is otherwise
entitled hereunder, including, without limitation, the right to deliver no more than three Demand
Notices pursuant to Section 3.2 hereunder or (ii) act to assign or transfer any of



38









 






the rights and obligations set forth in Article V hereof except in respect of a transfer and
assignment to a Permitted Assignee who is also an Affiliate of the Stockholder.




          SECTION 8.10 Expenses. Except as otherwise expressly provided herein, each of the
Company and the Stockholder shall bear its own respective expenses incurred on its behalf with
respect to this Agreement.




          SECTION 8.11 Payment Obligations. Notwithstanding anything to the contrary herein,
the Company will make any payment required to be made by it pursuant to the terms of this Agreement
only to the extent not prohibited by any material agreement of the Company in effect on the date
hereof, and any failure to make a payment otherwise so required hereunder shall not constitute a
default or breach of the Company’s obligations hereunder to the extent so prohibited by any such
material agreement.




          SECTION 8.12 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be enforceable against the parties actually executing such counterparts, and
all of which together shall constitute one instrument. This Agreement may be executed by facsimile
signature(s).




          SECTION 8.13 Severability. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that no such severability
shall be effective if it materially changes the economic benefit of this Agreement to any party..




          SECTION 8.14 Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not considered in construing or interpreting this Agreement.




39









 






     
     IN WITNESS WHEREOF, the parties hereto have executed the INVESTOR RIGHTS AGREEMENT as of the
date set forth in the first paragraph hereof.



	 	 	 	 	 
	 	CONSECO, INC.

 	 
	 	By:  	/s/ Edward
J. Bonach	 
	 	 	Name: Edward
J. Bonach
	 	 	Title: Executive Vice President and Chief
Financial Officer
	 
	 	PAULSON & CO. INC., on behalf of the

several investment funds and accounts

managed by it

 	 
	 	By:  	/s/ Michael
Waldorf	 
	 	 	Name: Michael Waldorf
	 	 	Title: Authorized Signatory
	 




 









 





Annex A




Plan of Distribution



We are registering the shares offered by this prospectus on behalf of the selling stockholders
named in this prospectus. The selling stockholders may, from time to time, sell, transfer or
otherwise dispose of any or all of their shares of common stock or interests in shares of common
stock on any stock exchange, market or trading facility on which the shares are traded or in
private transactions directly or through one or more underwriters, broker-dealers or agents. If
the shares of common stock are sold through underwriters or broker-dealers, the selling
stockholders will be responsible for underwriting discounts or commissions or agent’s commissions.
These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at
prices related to the prevailing market price, at varying prices determined at the time of sale, or
at negotiated prices.



The selling stockholders will act independently of us in making decisions as to the timing, manner
and size of each sale. The selling stockholders may use any one or more of the following methods
when disposing of shares or interests therein:





	 	•	 	in the over-the-counter market;
	 
	 	•	 	on any national securities exchange or market, if any, on which our common stock
may be listed at the time of sale;
	 
	 	•	 	in transactions otherwise than on an exchange or in the over-the-counter market,
or in a combination of any such transactions;
	 
	 	•	 	through block trades in which the broker or dealer so engaged will attempt to sell
the shares as agent, but may position and resell a portion of the block as principal to
facilitate the transaction;
	 
	 	•	 	through purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this prospectus;
	 
	 	•	 	in ordinary brokerage transactions and transactions in which the broker solicits
purchasers;
	 
	 	•	 	through writing of options, swaps, forwards, or derivatives;
	 
	 	•	 	in privately negotiated transactions;
	 
	 	•	 	in transactions to cover short sales;
	 
	 	•	 	through transactions in which broker-dealers may agree with the selling
stockholders to sell a specified number of such shares at




 









 






	 	 	 	a stipulated price per share;
	 
	 	•	 	through a combination of any such methods of sale.




The selling stockholders may, from time to time, pledge or grant a security interest in some or all
of the shares of common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may offer and sell the
shares of common stock, from time to time, under this prospectus, or under an amendment or
supplement to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act of 1933, as amended amending the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this prospectus.



The selling stockholders may sell their shares of our common stock directly to purchasers or may
use brokers, dealers, underwriters or agents to sell such shares. In effecting sales, brokers and
dealers engaged by the selling stockholders may arrange for other brokers or dealers to
participate. Brokers or dealers may receive commissions, discounts or concessions from a selling
stockholder or, if any such broker-dealer acts as agent for the purchaser of such shares, from a
purchaser in amounts to be negotiated. Such compensation may, but is not expected to, exceed that
which is customary for the types of transactions involved. Broker-dealers may agree with a selling
stockholder to sell a specified number of such shares at a stipulated price per share, and, to the
extent such broker-dealer is unable to do so acting as agent for a selling stockholder, to purchase
as principal any unsold shares at the price required to fulfill the broker-dealer commitment to the
selling stockholders. Broker-dealers who acquire shares as principal may thereafter resell such
shares from time to time in transactions, which may involve block transactions and sales to and
through other broker-dealers, including transactions of the nature described above, in the
over-the-counter market or otherwise at prices and on terms then prevailing at the time of sale, at
prices then related to the then-current market price or in negotiated transactions. In connection
with such resales, broker-dealers may pay to, or receive from, the purchasers of such shares
commissions as described above.



The selling stockholders and any broker-dealers or agents that participate with the selling
stockholders in sales of their shares of our common stock may be deemed to be “underwriters” within
the meaning of the Securities Act of 1933, as amended in connection with such sales. In such event,
any commissions received by such broker-dealers or agents and any profit on the resale of such
shares purchased by them may be deemed to be underwriting commissions or discounts under the
Securities Act of 1933, as amended.



From time to time, the selling stockholders may engage in short sales, short sales against the box,
puts and calls and other hedging transactions in our securities, and may sell and deliver their
shares of our common stock in connection with such transactions or in settlement of securities
loans. These transactions may be entered into with broker-dealers or other financial institutions.
In addition, from time to time a selling stockholder may pledge our shares pursuant to the margin
provisions of customer agreements with broker-dealers or other financial institutions. Upon
delivery of such shares or a default by a selling stockholder, the broker-dealer or financial
institution may offer and sell such pledged shares from time to time under this prospectus, or
under an amendment or supplement to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933, as amended amending the list of selling stockholders to



 









 






include the pledgee, transferee or other successors in interest as selling stockholders under this
prospectus.



The selling stockholders also may resell all or a portion of the shares in open market transactions
in reliance upon Rule 144 under the Securities Act of 1933, as amended provided that they meet the
criteria and conform to the requirements of that rule.



We are required to pay all fees and expenses incident to the registration of the common stock. We
have agreed to indemnify the selling stockholders against certain losses, claims, damages and
liabilities under the Securities Act of 1933, as amended.



The selling stockholders are subject to applicable provisions of the Securities Exchange Act of
1934, as amended and the SEC’s rules and regulations, including Regulation M, which provisions may
limit the timing of purchases and sales of the shares by the selling stockholders.



In order to comply with certain states’ securities laws, if applicable, the shares may be sold in
those jurisdictions only through registered or licensed brokers or dealers. In certain states the
shares may not be sold unless the shares have been registered or qualified for sale in such state,
or unless an exemption from registration or qualification is available and is obtained.



We will file supplements to this prospectus as required by item 508 of Regulation S-K to the extent
applicable.



The selling stockholders are not restricted as to the price or prices at which they may sell their
common shares. Sales of such common shares may have an adverse effect on the market price of the
securities, including the market price of the common shares. Moreover, the selling stockholders are
not restricted as to the number of common shares that may be sold at any time, and it is possible
that a significant number of common shares could be sold at the same time, which may have an
adverse effect on the market price of the common shares.



We and the selling stockholders may agree to indemnify any underwriter, broker-dealer or agent that
participates in transactions involving sales of the common shares against certain liabilities,
including liabilities arising under the Securities Act.




 









 





EXHIBIT A




FORM OF REQUEST FOR REMOVAL OF RESTRICTIVE LEGEND IN

CONNECTION WITH A TRANSFER PURSUANT TO RULE 144




To be delivered to:



Conseco, Inc.

11825 North Pennsylvania Street

Carmel, Indiana 46032

Attn: General Counsel




[Address of Transfer Agent]





			
	     Re:	 	Shares, Warrants or Common Stock issuable upon exercise of the Warrants or
upon conversion of convertible Indebtedness acquired by Stockholder in the Company
Refinancing (collectively, the “Securities”)





     Reference is hereby made to the Investor Rights Agreement dated as of                      ___, 20___ (the
“Rights Agreement”) by and among Conseco, Inc., a Delaware corporation (the
“Company”), and Paulson & Co. Inc., a Delaware corporation, on behalf of the several
investment funds and accounts managed by it, and any other Investors agreeing in writing to be
bound by the terms of the Rights Agreement. Capitalized terms used by not defined herein will have
the respective meanings ascribed to such terms in the Rights Agreement.



     This letter relates to the following Securities held by the undersigned Investor (the
“Subject Securities”):




	 	o	 	Warrants to acquire            
          shares of Common Stock represented by certificate
number(s):               
               
     
               
               
               
               
      .
	 
	 	o	 	              
       shares of Common Stock represented by certificate number(s):
              
              
               
                
               
      
                
    .





     The undersigned Investor requests that the restrictive legend included on the face of the
Subject Securities described above pursuant to Section 2.2 of the Rights Agreement (the
“Restrictive Legend”) be removed. In connection with such request, the undersigned
Investor does hereby certify that neither the Restrictive Legend nor the restrictions on transfer
set forth therein are required to ensure that transfers of the Subject Securities will not violate
the registration requirements of the Securities Act for the reason checked below:



     The Subject Securities are being Transferred in a transaction exempt from registration under
the Securities Act pursuant to Rule 144. The Investor hereby certifies that the Subject Securities
are eligible for resale without limitation under Rule 144 (other than company information
requirements of paragraph (c) of Rule 144). In connection with this Transfer, the Investor hereby
represents and warrants as follows:




	 	1.	 	The Investor is not, and has not been at any time during the three months
preceding the date hereof, an affiliate (as defined under Rule 144) of the Company;
	 
	 	2.	 	The Subject Securities were acquired from the Issuer or from an affiliate of
the Issuer, and the full purchase price or other consideration was paid therefore, at
least six months prior to the date hereof; and




 









 






	 	3.	 	The Investor is not aware of any material adverse information with regard to
the Company which has not been publicly disclosed.





     Notwithstanding anything to the contrary herein, and without otherwise limiting the Investor’s
remedies under the Rights Agreement, if the Company is not in compliance with the Company
information requirements of paragraph (c) of Rule 144, the Investor hereby instructs the Company to
disregard this request until such time as the Company is again in compliance with such requirements
of paragraph (c) of Rule 144.



     This certificate and the statements contained herein are made for the benefit of the Company
and the Company’s transfer agent on behalf of the undersigned Investor.



	 	 	 	 	 
	 	[NAME OF INVESTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                     , ____