Exhibit 4.5
EXECUTION COPY
Conseco, Inc.
3.50% Convertible Debentures due September 30, 2035
Registration Rights Agreement
August 15, 2005
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated
J.P. Morgan Securities Inc.
As representatives of the several
Purchasers
named in Schedule I to the
Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Conseco, Inc., a
Delaware corporation (the "Company"), proposes to issue
and sell to the Purchasers (as defined
herein) upon the terms set forth in the
Purchase Agreement (as defined herein) its
3.50% Convertible Debentures due
September 30, 2035 (the "Securities"). As
an inducement to the Purchasers to
enter into the Purchase Agreement and in
satisfaction of a condition to the
obligations of the Purchasers thereunder,
the Company agrees with the Purchasers
for the benefit of Holders (as defined
herein) from time to time of the
Registrable Securities (as defined herein)
as follows:
1.
Definitions.
(a) Capitalized
terms used herein without definition shall have the
meanings ascribed to them in the Purchase
Agreement. As used in this Agreement,
the following defined terms shall have the
following meanings:
"Additional
Interest" has the meaning assigned thereto in Section 7(a)
hereof.
"Affiliate" of
any specified person means any other person which, directly
or indirectly, is in control of, is
controlled by, or is under common control
with such specified person. For purposes of
this definition, control of a person
means the power, direct or indirect, to
direct or
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cause the direction of the management and
policies of such person whether by
contract or otherwise; and the terms
"controlling" and "controlled" have
meanings correlative to the foregoing.
"Closing Date"
means the First Time of Delivery as defined in the Purchase
Agreement.
"Commission"
means the United States Securities and Exchange Commission, or
any other federal agency at the time
administering the Exchange Act or the
Securities Act, whichever is the relevant
statute for the particular purpose.
"Common Stock"
means the Company's common stock, par value $0.01 per share.
"DTC" means The
Depository Trust Company.
"Effective Date"
has the meaning assigned thereto in Section 2(b)(i)
hereof.
"Effective
Failure" has the meaning assigned thereto in Section 7(b)
hereof.
"Effectiveness
Period" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"Effective Time"
means the time at which the Commission declares the Shelf
Registration Statement effective or at
which the Shelf Registration Statement
otherwise becomes effective.
"Electing
Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act"
means the United States Securities Exchange Act of 1934, as
amended.
"Holder" means any
person that is the record owner of Registrable
Securities (and includes any person that
has a beneficial interest in any
Registrable Security in book-entry
form).
"Indenture"
means the Indenture, dated as of August 15, 2005, between the
Company and The Bank of New York Trust
Company, N.A., as amended and
supplemented from time to time in
accordance with its terms.
"Managing
Underwriters" means the investment banker or investment bankers
and manager or managers that shall
administer an underwritten offering, if any,
conducted pursuant to Section 6 hereof.
"NASD Rules"
means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to
time.
"Notice and
Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire
substantially in the form of Appendix A
hereto.
The term
"person" means an individual, partnership, corporation, trust
or
unincorporated organization, or a
government or agency or political subdivision
thereof.
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"Prospectus"
means the prospectus (including, without limitation, any
preliminary prospectus, any final
prospectus and any prospectus that discloses
information previously omitted from a
prospectus filed as part of an effective
registration statement in reliance upon
Rule 430A under the Securities Act)
included in the Shelf Registration
Statement, as amended or supplemented by any
prospectus supplement with respect to the
terms of the offering of any portion
of the Registrable Securities covered by
the Shelf Registration Statement and by
all other amendments and supplements to
such prospectus, including all material
incorporated by reference in such
prospectus and all documents filed after the
date of such prospectus by the Company
under the Exchange Act and incorporated
by reference therein.
"Purchase
Agreement" means the purchase agreement, dated as of August 9,
2005, between the Purchasers and the
Company relating to the Securities.
"Purchasers"
means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable
Securities" means all or any portion of the Securities issued
from time to time under the Indenture in
registered form and the shares of
Common Stock issuable upon conversion of
such Securities; provided, however,
that a security ceases to be a Registrable
Security when it is no longer a
Restricted Security.
"Registration
Default" has the meaning assigned thereto in Section 7(a)
hereof.
"Restricted
Security" means any Security or share of Common Stock issuable
upon conversion thereof except any such
Security or share of Common Stock that
(i) has been effectively registered under
the Securities Act and sold in a
manner contemplated by the Shelf
Registration Statement, (ii) has been
transferred in compliance with Rule 144
under the Securities Act (or any
successor provision thereto) or is
transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision
thereto) or (iii) has otherwise been
transferred and a new Security or share of
Common Stock not subject to transfer
restrictions under the Securities Act has
been delivered by or on behalf of the
Company in accordance with Section 3.6 of
the Indenture.
"Rules and
Regulations" means the published rules and regulations of the
Commission promulgated under the Securities
Act or the Exchange Act, as in
effect at any relevant time.
"Securities Act"
means the United States Securities Act of 1933, as
amended.
"Shelf Registration" means a
registration effected pursuant to Section 2
hereof.
"Shelf
Registration Statement" means a "shelf" registration statement
filed
under the Securities Act providing for the
registration of, and the sale on a
continuous or delayed basis by the Holders
of, all of the Registrable Securities
pursuant to Rule 415 under the Securities
Act and/or any similar rule that may
be adopted by the Commission, filed by the
Company pursuant to the provisions of
Section 2 of this Agreement, including the
Prospectus contained therein, any
amendments and supplements to such
registration statement, including
post-effective amendments, and all exhibits
and all material incorporated by
reference in such registration
statement.
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"Trust Indenture
Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules,
regulations and forms promulgated thereunder,
as the same shall be amended from time to
time.
The term
"underwriter" means any underwriter of Registrable Securities
in
connection with an offering thereof under a
Shelf Registration Statement.
(b) Wherever
there is a reference in this Agreement to a percentage of the
"principal amount" of Registrable
Securities or to a percentage of Registrable
Securities, Common Stock shall be treated
as representing the principal amount
of Securities that was surrendered for
conversion or exchange in order to
receive such number of shares of Common
Stock.
2. Shelf
Registration.
(a) The Company
shall, no later than 90 calendar days following the Closing
Date, file with the Commission a Shelf
Registration Statement relating to the
offer and sale of the Registrable
Securities by the Holders from time to time in
accordance with the methods of distribution
elected by such Holders and set
forth in such Shelf Registration Statement
and, thereafter, shall use its
reasonable best efforts to cause such Shelf
Registration Statement to be
declared effective under the Securities Act
no later than 210 calendar days
following the Closing Date; provided,
however, that the Company may, upon
written notice to all Holders, postpone
having the Shelf Registration Statement
declared effective for a reasonable period
not to exceed 90 days if the Company
possesses material non-public information,
the disclosure of which would have a
material adverse effect on the Company and
its subsidiaries taken as a whole;
provided, further, however, that no Holder
shall be entitled to be named as a
selling securityholder in the Shelf
Registration Statement or to use the
Prospectus forming a part thereof for
resales of Registrable Securities unless
such Holder is an Electing Holder.
(b) The Company
shall use its reasonable best efforts:
(i) to keep the Shelf Registration Statement continuously
effective
under the
Securities Act in order to permit the Prospectus forming a part
thereof to be
usable by Holders until the earliest of (1) the sale of all
Registrable
Securities registered under the Shelf Registration Statement;
(2) the
expiration of the period referred to in Rule 144(k) of the
Securities Act
with respect to all Registrable Securities held by Persons
that are not
Affiliates of the Company; and (3) two years from the date
(the "Effective
Date") such Shelf Registration Statement is declared
effective (such
period being referred to herein as the "Effectiveness
Period");
(ii) after the Effective Time of the Shelf Registration
Statement,
promptly upon
the request of any Holder of Registrable Securities that is
not then an
Electing Holder, to take any action reasonably necessary to
enable such
Holder to use the Prospectus forming a part thereof for resales
of Registrable
Securities, including, without limitation, any action
necessary to
identify such Holder as a selling securityholder in the Shelf
Registration
Statement; provided, however, that nothing in this
subparagraph
shall relieve such Holder of the obligation to return a
completed and
signed Notice and Questionnaire to the Company in accordance
with Section
3(a)(ii) hereof; and provided
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further, that
the Company will be under no obligation to file a
post-effective
amendment to add any Holder of Registrable Securities to the
Shelf
Registration Statement more than once per calendar quarter for
all
such Holders;
and
(iii) if at any time the Securities, pursuant to Article XII of
the
Indenture, are
convertible into securities other than Common Stock, to
cause, or to
cause any successor under the Indenture to cause, such
securities to be
included in the Shelf Registration Statement no later than
the date on which the Securities
may then be convertible into such
securities.
The Company shall be deemed not to have
used its reasonable best efforts to keep
the Shelf Registration Statement effective
during the requisite period if the
Company voluntarily takes any action that
would result in Holders of Registrable
Securities covered thereby not being able
to offer and sell any of such
Registrable Securities during that period,
unless such action is (A) required by
applicable law and the Company thereafter
promptly complies with the
requirements of paragraph 3(j) below or (B)
permitted pursuant to Section 2(c)
below.
(c) The Company
may suspend the use of the Prospectus for a period not to
exceed 30 days in any 90-day period or an
aggregate of 90 days in any 12-month
period if the Board of Directors of the
Company shall have determined in good
faith that because of valid business
reasons (not including avoidance of the
Company's obligations hereunder), including
the acquisition or divestiture of
assets, pending corporate developments,
public filings with the Commission and
similar events, it is in the best interests
of the Company to suspend such use,
and prior to suspending such use the
Company provides the Holders with written
notice of such suspension, which notice
need not specify the nature of the event
giving rise to such suspension.
3. Registration
Procedures. In connection with the Shelf Registration
Statement, the following provisions shall
apply:
(a) (i) Not less
than 30 calendar days prior to the Effective Time of the
Shelf Registration Statement, the Company
shall mail the Notice and
Questionnaire to the Holders of Registrable
Securities. No Holder shall be
entitled to be named as a selling
securityholder in the Shelf Registration
Statement as of the Effective Time, and no
Holder shall be entitled to use the
Prospectus forming a part thereof for
resales of Registrable Securities at any
time, unless such Holder has returned a
completed and signed Notice and
Questionnaire to the Company by the
deadline for response set forth therein;
provided, however, Holders of Registrable
Securities shall have at least 28
calendar days from the date on which the
Notice and Questionnaire is first
mailed to such Holders to return a
completed and signed Notice and Questionnaire
to the Company.
(ii) After the Effective Time of the Shelf Registration Statement,
the
Company shall,
upon the request of any Holder of Registrable Securities
that is not then
an Electing Holder, promptly send a Notice and
Questionnaire to
such Holder. The Company shall not be required to take any
action to name
such Holder as a selling securityholder in the Shelf
Registration
Statement or to enable such Holder to use the Prospectus
forming a part thereof for resales
of Registrable Securities until such
Holder
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has returned a
completed and signed Notice and Questionnaire to the
Company; and,
for the avoidance of doubt, it is understood that the Company
will be under no
obligation to file a post-effective amendment to add any
Holder of
Registrable Securities to the Shelf Registration Statement more
than once per
calendar quarter for all such Holders. If a Notice and
Questionnaire is
delivered to the Company during the periods specified in
Section 2(c),
the Company shall not be obligated to take action to name the
Holder
delivering such Notice and Questionnaire as a selling security
holder in the
Shelf Registration Statement until the termination of such
period.
(iii) The term "Electing Holder" shall mean any Holder of
Registrable
Securities that
has returned a completed and signed Notice and
Questionnaire to
the Company in accordance with Section 3(a)(i) or 3(a)(ii)
hereof.
(b) Upon request
by an Electing Holder, the Company shall furnish to each
Electing Holder, prior to the Effective
Time, a copy of the Shelf Registration
Statement initially filed with the
Commission, and shall furnish to such
Holders, prior to the filing thereof with
the Commission, copies of each
amendment thereto and each amendment or
supplement, if any, to the Prospectus
included therein, and shall use its
reasonable best efforts to reflect in each
such document, at the Effective Time or
when so filed with the Commission, as
the case may be, such comments as such
Holders and their respective counsel
reasonably may propose.
(c) The Company
shall promptly take such action as may be necessary so that
(i) each of the Shelf Registration
Statement and any amendment thereto and the
Prospectus forming a part thereof and any
amendment or supplement thereto (and
each report or other document incorporated
therein by reference in each case)
complies in all material respects with the
Securities Act and the Exchange Act
and the respective rules and regulations
thereunder, (ii) each of the Shelf
Registration Statement and any amendment
thereto does not, when it becomes
effective, contain an untrue statement of a
material fact or omit to state a
material fact required to be stated therein
or necessary to make the statements
therein not misleading and (iii) each of
the Prospectus forming a part of the
Shelf Registration Statement, and any
amendment or supplement to such
Prospectus, does not at any time during the
Effectiveness Period include an
untrue statement of a material fact or omit
to state a material fact necessary
in order to make the statements therein, in
the light of the circumstances under
which they were made, not misleading.
(d) The Company
shall promptly advise each Electing Holder, and shall
confirm such advice in writing if so
requested by any such Electing Holder:
(i) when a Shelf Registration Statement and any amendment thereto
has
been filed with
the Commission and when a Shelf Registration Statement or
any
post-effective amendment thereto has become effective, in each
case
making a public
announcement thereof by release made to Reuters Economic
Services and Bloomberg
Business News;
(ii) of any request by the Commission for amendments or supplements
to
the Shelf
Registration Statement or the Prospectus included therein or
for
additional
information;
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(iii) of the issuance by the Commission of any stop order
suspending
the
effectiveness of the Shelf Registration Statement or the initiation
of
any proceedings
for such purpose;
(iv) of the receipt by the Company of any notification with respect
to
the suspension
of the qualification of the securities included in the Shelf
Registration
Statement for sale in any jurisdiction or the initiation of
any proceeding
for such purpose; and
(v)
of the occurrence of any event or the existence of any state of
facts that
requires the making of any changes in the Shelf Registration
Statement or the
Prospectus included therein so that, as of such date, such
Shelf
Registration Statement and Prospectus do not contain an untrue
statement of a
material fact and do not omit to state a material fact
required to be
stated therein or necessary to make the statements therein
(in the case of
the Prospectus, in light of the circumstances under which
they were made)
not misleading (which advice shall be accompanied by an
instruction to
such Holders to suspend the use of the Prospectus until the
requisite
changes have been made, and which advice need not specify the
nature of the
event giving rise to such suspension).
(e) The Company
shall use its reasonable best efforts to prevent the
issuance, and if issued to obtain the
withdrawal at the earliest possible time,
of any order suspending the effectiveness
of the Shelf Registration Statement.
(f) The Company
shall furnish to each Electing Holder who so requests,
without charge, at least one copy of the
Shelf Registration Statement and all
post-effective amendments thereto,
including financial statements and schedules,
and, if such Electing Holder so requests in
writing, all reports, other
documents and exhibits that are filed with
or incorporated by reference in the
Shelf Registration Statement.
(g) The Company
shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many
copies of the Prospectus (including
each preliminary Prospectus) included in
the Shelf Registration Statement and
any amendment or supplement thereto as such
Electing Holder may reasonably
request; and the Company consents (except
during the periods specified in
Section 2(c) above or during the
continuance of any event or the existence of
any state of facts described in Section
3(d)(v) above) to the use of the
Prospectus and any amendment or supplement
thereto by each of the Electing
Holders in connection with the offering and
sale of the Registrable Securities
covered by the Prospectus and any amendment
or supplement thereto during the
Effectiveness Period.
(h) Prior to any
offering of Registrable Securities pursuant to the Shelf
Registration Statement, the Company shall
(i) register or qualify or cooperate
with the Electing Holders and their
respective counsel in connection with the
registration or qualification of such
Registrable Securities for offer and sale
under the securities or "blue sky" laws of
such jurisdictions within the United
States as any Electing Holder may
reasonably request, (ii) keep such
registrations or qualifications in effect
and comply with such laws so as to
permit the continuance of offers and sales
in such jurisdictions for so long as
may be necessary to enable any Electing
Holder or
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underwriter, if any, to complete its
distribution of Registrable Securities
pursuant to the Shelf Registration
Statement, and (iii) take any and all other
actions necessary or advisable to enable
the disposition in such jurisdictions
of such Registrable Securities; provided,
however, that in no event shall the
Company be obligated to (A) qualify as a
foreign corporation or as a dealer in
securities in any jurisdiction where it
would not otherwise be required to so
qualify but for this Section 3(h) or (B)
file any general consent to service of
process in any jurisdiction where it is not
as of the date hereof so subject.
(i) Unless any
Registrable Securities shall be in book-entry only form, the
Company shall cooperate with the Electing
Holders to facilitate the timely
preparation and delivery of certificates
representing Registrable Securities to
be sold pursuant to the Shelf Registration
Statement, which certificates, if so
required by any securities exchange upon
which any Registrable Securities are
listed, shall be penned, lithographed or
engraved, or produced by any
combination of such methods, on steel
engraved borders, and which certificates
shall be free of any restrictive legends
and in such permitted denominations and
registered in such names as Electing
Holders may request in connection with the
sale of Registrable Securities pursuant to
the Shelf Registration Statement.
(j) Upon the
occurrence of any event or the existence of any state of facts
contemplated by paragraph 3(d)(v) above
during the Effectiveness Period, the
Company shall (subject to its right to
suspend the use of the Prospectus
pursuant to Section 2(c)) promptly prepare
a post-effective amendment to any
Shelf Registration Statement or an
amendment or supplement to the related
Prospectus or file any other required
document with the Commission so that, as
thereafter delivered to purchasers of the
Registrable Securities included
therein, the Prospectus will not include an
untrue statement of a material fact
or omit to state any material fact
necessary to make the statements therein, in
the light of the circumstances under which
they were made, not misleading. If
the Company notifies the Electing Holders
of the occurrence of any event or the
existence of any state of facts
contemplated by paragraph 3(d)(v) above, the
Electing Holder shall suspend the use of
the Prospectus until the requisite
changes to the Prospectus have been made
(or, in the event that the Company
exercises its suspension rights under
Section 2(c), until the end of the
suspension period).
(k) Not later
than the Effective Time of the Shelf Registration Statement,
the Company shall provide a CUSIP number
for the Registrable Securities that are
debt securities.
(l) The Company
shall use its reasonable best efforts to comply with all
applicable Rules and Regulations, and to
make generally available to its
securityholders as soon as practicable, but
in any event not later than eighteen
months after (i) the effective date (as
defined in Rule 158(c) under the
Securities Act) of the Shelf Registration
Statement, (ii) the effective date of
each post-effective amendment to the Shelf
Registration Statement, and (iii) the
date of each filing by the Company with the
Commission of an Annual Report on
Form 10-K that is incorporated by reference
in the Shelf Registration Statement,
an earning statement of the Company and its
subsidiaries complying with Section
11(a) of the Securities Act and the rules
and regulations of the Commission
thereunder (including, at the option of the
Company, Rule 158).
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(m) Not later than the Effective
Time of the Shelf Registration Statement,
the Company shall cause the Indenture to be
qualified under the Trust Indenture
Act; in connection with such qualification,
the Company shall cooperate with the
Trustee under the Indenture and the Holders
(as defined in the Indenture) to
effect such changes to the Indenture as may
be required for such Indenture to be
so qualified in accordance with the terms
of the Trust Indenture Act; and the
Company shall execute, and shall use all
reasonable efforts to cause the Trustee
to execute, all documents that may be
required to effect such changes and all
other forms and documents required to be
filed with the Commission to enable
such Indenture to be so qualified in a
timely manner. In the event that any such
amendment or modification referred to in
this Section 3(m) involves the
appointment of a new trustee under the
Indenture, the Company shall appoint a
new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(n) In the event of an
underwritten offering conducted pursuant to Section
6 hereof, the Company shall, if requested,
promptly include or incorporate in a
Prospectus supplement or post-effective
amendment to the Shelf Registration
Statement such information as the Managing
Underwriters reasonably agree should
be included therein and to which the
Company does not reasonably object and
shall make all required filings of such
Prospectus supplement or post-effective
amendment as soon as practicable after it
is notified of the matters to be
included or incorporated in such Prospectus
supplement or post-effective
amendment.
(o) The Company
shall enter into such customary agreements (including an
underwriting agreement in customary form in
the event of an underwritten
offering conducted pursuant to Section 6
hereof) and take all other appropriate
action in order to expedite and facilitate
the registration and disposition of
the Registrable Securities, and in
connection therewith, if an underwriting
agreement is entered into, cause the same
to contain indemnification provisions
and procedures substantially identical to
those set forth in Section 5 hereof
with respect to all parties to be
indemnified pursuant to Section 5 hereof.
(p) The Company
shall:
(i)(A) make reasonably available for inspection by the Electing
Holders, any
underwriter participating in any disposition pursuant to the
Shelf
Registration Statement, and any attorney, accountant or other
agent
retained by such
Electing Holders or any such underwriter all relevant
financial and
other records, pertinent corporate documents and properties
of the Company
and its subsidiaries, and (B) cause the Company's officers,
directors and
employees to supply all information reasonably requested by
such Electing
Holders or any such underwriter, attorney, accountant or
agent in
connection with the Shelf Registration Statement, in each case,
as
is customary for
similar due diligence examinations; provided, however,
that all
records, information and documents that are designated in
writing
by the Company,
in good faith, as confidential shall be kept confidential
by such Electing
Holders and any such underwriter, attorney, accountant or
agent, unless
such disclosure is made in connection with a court proceeding
or required by
law, or such records, information or documents become
available to the
public generally or through a third party without an
accompanying
obligation of confidentiality; and provided further that, if
the foregoing
inspection and
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information
gathering would otherwise disrupt the Company's conduct of its
business, such
inspection and information gathering shall, to the greatest
extent possible,
be coordinated on behalf of the Electing Holders and the
other parties
entitled thereto by one counsel designated by and on behalf
of the Electing
Holders and other parties;
(ii) in connection with any underwritten offering conducted
pursuant
to Section 6
hereof, make such representations and warranties to the
Electing Holders
participating in such underwritten offering and to the
Managing
Underwriters, in form, substance and scope as are customarily
made
by the Company
to underwriters in primary underwritten offerings of equity
and convertible
debt securities and covering matters including, but not
limited to,
those set forth in the Purchase Agreement;
(iii) in connection with any underwritten offering conducted
pursuant
to Section 6
hereof, obtain opinions of counsel to the Company (which
counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to
the Managing Underwriters) addressed to each Electing
Holder
participating in such underwritten offering and the
underwriters,
covering such
matters as are customarily covered in opinions requested in
primary
underwritten offerings of equity and convertible debt
securities
and such other
matters as may be reasonably requested by such Electing
Holders and
underwriters (it being agreed that the matters to be covered by
such opinions
shall include, without limitation, as of the date of the
opinion and as
of the Effective Time of the Shelf Registration Statement or
most recent
post-effective amendment thereto, as the case may be, the
absence from the
Shelf Registration Statement and the Prospectus, including
the documents
incorporated by reference therein, of an untrue statement of
a material fact
or the omission of a material fact required to be stated
therein (in the
case of the Prospectus, in the light of the circumstances
in which they
were made) or necessary to make the statements therein not
misleading;
(iv) in connection with any underwritten offering conducted
pursuant
to Section 6
hereof, obtain "cold comfort" letters and updates thereof from
the independent
public accountants of the Company (and, if necessary, from
the independent
public accountants of any subsidiary of the Company or of
any business
acquired by the Company for which financial statements and
financial data
are, or are required to be, included in the Shelf
Registration
Statement), addressed to each Electing Holder participating in
such
underwritten offering (if such Electing Holder has provided
such
letter,
representations or documentation, if any, required for such
cold
comfort letter
to be so addressed) and the underwriters, in customary form
and covering
matters of the type customarily covered in "cold comfort"
letters in
connection with primary underwritten offerings;
(v) in connection with any underwritten offering conducted pursuant
to
Section 6
hereof, deliver such documents and certificates as may be
reasonably
requested by any Electing Holders participating in such
underwritten
offering and the Managing Underwriters, if any, including,
without
limitation, certificates to evidence compliance with Section
3(j)
hereof and with
any conditions contained in the underwriting agreement or
other agreements
entered into by the Company.
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(q) The Company
will use its reasonable best efforts to cause the Common
Stock issuable upon conversion of the
Securities to be quoted or listed on the
New York Stock Exchange or other stock
exchange or trading system on which the
Common Stock primarily trades on or prior
to the Effective Time of the Shelf
Registration Statement hereunder.
(r) In the event
that any broker-dealer registered under the Exchange Act
shall be an "affiliate" (as defined in Rule
2720(b)(1) of the NASD Rules (or any
successor provision thereto)) of the
Company or has a "conflict of interest" (as
defined in Rule 2720(b)(7) of the NASD
Rules (or any successor provision
thereto)) and such broker-dealer shall
underwrite, participate as a member of an
underwriting syndicate or selling group or
assist in the distribution of any
Registrable Securities covered by the Shelf
Registration Statement, whether as a
Holder of such Registrable Securities or as
an underwriter, a placement or sales
agent or a broker or dealer in respect
thereof, or otherwise, the Company shall
assist such broker-dealer in complying with
the requirements of the NASD Rules,
including, without limitation, by (A)
engaging a "qualified independent
underwriter" (as defined in Rule
2720(b)(15) of the NASD Rules (or any succes
