EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
Dated as of December 30, 2004
by and between
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY
and
DEUTSCHE BANK SECURITIES INC.
5.25% Contingent Convertible Senior Notes Due 2024
TABLE OF CONTENTS
1. Definitions.............................................................1
2. Shelf Registration......................................................4
3. Liquidated Damages......................................................6
4. Registration Procedures.................................................8
5. Registration Expenses..................................................13
6. Indemnification........................................................14
7. Rules 144 and 144A.....................................................17
8. Underwritten Registrations.............................................18
9. Miscellaneous..........................................................18
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
December 30, 2004, by and between American Equity Investment Life Holding
Company, an Iowa corporation (the "Company"), and Deutsche Bank Securities Inc.
(the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement dated December 23, 2004 (the "Purchase Agreement") between the
Company and the Initial Purchaser, which provides for the sale by the Company
to the Initial Purchaser of $10,000,000 aggregate principal amount of the
Company's 5.25% Contingent Convertible Senior Notes Due 2024 (the "Notes"),
which are convertible into cash and common stock, par value $1.00 per share, of
the Company (the "Underlying Shares"). The Notes are being issued pursuant to
an Indenture dated as of December 6, 2004 (the "Base Indenture"), as
supplemented by a First Supplemental Indenture dated as of the date hereof (the
"First Supplemental Indenture" and together with the Base Indenture, the
"Indenture"), by and between the Company and U.S. Bank National Association, as
Trustee.
In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchaser and subsequent
holders of the Notes or Underlying Shares as provided herein. The execution and
delivery of this Agreement is a condition to the Initial Purchaser's obligation
to purchase the Notes under the Purchase Agreement.
The parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:"Agreement": See the first introductory paragraph
hereto.
"Amendment Effectiveness Deadline Date": See Section 2(d)(i) hereof.
"Amount of Registrable Securities": (a) With respect to Notes
constituting Registrable Securities, the aggregate principal amount of all such
Notes then outstanding, (b) with respect to Underlying Shares constituting
Registrable Securities, the aggregate number of such Underlying Shares
outstanding multiplied by the Conversion Price (as defined in the Indenture) in
effect at the time of computing the Amount of Registrable Securities or, if no
Notes are then outstanding, the Conversion Price shall be calculated as if the
Notes were continuously outstanding to the date of calculation, giving effect
to any adjustments to the Conversion Price set forth in the Indenture as if the
Indenture continued to be in effect, and (c) with respect to combinations
thereof, the sum of (a) and (b) for the relevant Registrable Securities.
"Business Day": Any day that is not a Saturday, Sunday or a day on
which banking institutions in the City of New York are authorized or required
by law or executive order to be closed.
"Closing Date": December 30, 2004.
"Company": See the first introductory paragraph hereto.
"Controlling Person": See Section 6 hereof.
"Damages Payment Date": See Section 3(c) hereof.
"Deferral Period": See Section 3(b) hereof.
"Depositary": The Depository Trust Company until a successor is
appointed by the Company.
"Designated Counsel": One firm of counsel chosen by the Holders of a
majority in Amount of Registrable Securities to be included in a Registration
Statement for a Shelf Registration and identified to the Company in writing
prior to the filing of such Registration Statement.
"Effectiveness Date": The 210th day after the Closing Date.
"Effectiveness Period": See Section 2(a) hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Filing Date": The 120th day after the Closing Date.
"Holder": Any beneficial owner from time to time of Registrable
Securities.
"Indemnified Holder": See Section 6 hereof.
"Indemnified Person": See Section 6 hereof.
"Indemnifying Person": See Section 6 hereof.
"Indenture": See the second introductory paragraph hereto.
"Initial Purchaser": See the first introductory paragraph hereto.
"Initial Shelf Registration": See Section 2(a) hereof.
"Inspectors": See Section 4(k) hereof.
"Liquidated Damages": See Section 3(a) hereof.
"Notes": See the second introductory paragraph hereto.
"Notice and Questionnaire": means a written notice delivered to the
Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Appendix A to the
Offering Memorandum of the Company relating to the Notes.
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"Person": An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
"Prospectus": The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement": See the second introductory paragraph hereto.
"Records": See Section 4(k) hereof.
"Registrable Securities": All Notes and all Underlying Shares upon
original issuance thereof and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement covering such Notes and
Underlying Shares having been declared effective by the SEC and such Notes or
Underlying Shares having been disposed of in accordance with such effective
Registration Statement, (ii) such Notes or Underlying Shares having been sold
in compliance with Rule 144 or being able to (except with respect to affiliates
of the Company within the meaning of the Securities Act) be sold in compliance
with Rule 144(k), or (iii) such Notes or Underlying Shares ceasing to be
outstanding.
"Registration Default": See Section 3(a) hereof.
"Registration Statement": Any registration statement of the Company
filed with the SEC 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 documents
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Rule 144": Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A": Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
"Rule 415": Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
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"SEC": The U.S. Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Selling Holder": On any date, any Holder that has delivered a Notice
and Questionnaire to the Company on or prior to such date.
"Shelf Registration": See Section 2(b) hereof.
"Shelf Registration Statement": See Section 2(b) hereof.
"Subsequent Shelf Registration": See Section 2(b) hereof.
"TIA": The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"Trustee": The Trustee under the Indenture.
"Underlying Shares": See the second introductory paragraph hereto.
"Underwritten Registration" or "Underwritten Offering": A
registration in which Registrable Securities are sold to an underwriter for
reoffering to the public.
2. Shelf Registration.
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(a) Initial Shelf Registration. The Company shall file with the
SEC a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Securities (the "Initial
Shelf Registration") on or prior to the Filing Date.
The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of the Registrable Securities for
resale by Holders in the manner or manners designated by them (excluding
Underwritten Offerings) and set forth in the Initial Shelf Registration. The
Company shall not permit any securities other than the Registrable Securities
to be included in the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below).
The Company shall use its commercially reasonable efforts to
cause the Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to keep the Initial
Shelf Registration continuously effective under the Securities Act until the
date (A) that is two years after the Closing Date (such period, as it may be
shortened pursuant to clauses (i), (ii) or (iii) immediately following, the
"Effectiveness Period"), or such shorter period ending when (i) all of the
Registrable Securities covered by the Initial Shelf Registration have been sold
in the manner set forth and as contemplated in the Initial Shelf Registration,
(ii) the date on which all the Registrable Securities (x) held by Persons who
are not affiliates of the Company may be resold pursuant to Rule 144(k) under
the Securities Act or (y) cease to be outstanding, (iii) all the Registrable
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Securities have been resold pursuant to Rule 144 under the Securities Act or
(B) a Subsequent Shelf Registration covering all of the Registrable Securities
has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the Registrable
Securities registered thereunder), the Company shall use its commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner reasonably
expected by the Company to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company
shall use its commercially reasonable efforts to cause the Subsequent Shelf
Registration to be declared effective under the Securities Act as soon as
practicable after such filing (or if filed during a Deferral Period, after the
expiration of such Deferral Period) and to keep such Registration Statement
continuously effective for the balance of the Effectiveness Period. As used
herein, the term "Shelf Registration" means the Initial Shelf Registration or
any Subsequent Shelf Registration and the term "Shelf Registration Statement"
means any Registration Statement filed in connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend a Shelf Registration if required by the rules, regulations
or instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in Amount of Registrable Securities covered by such
Shelf Registration Statement.
(d) Notice and Questionnaire. Each Holder agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 4A hereof. Each Holder wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a Notice and Questionnaire to the Company at least five (5)
Business Days prior to the date that the Initial Shelf Registration Statement
is declared effective under the Securities Act. From and after the date the
Initial Shelf Registration Statement is declared effective, the Company shall,
as promptly as practicable after the date a fully completed and legible Notice
and Questionnaire, together with such other information as the Company may
reasonably request, is received by the Company, and in any event upon the later
of (x) twenty (20) days after such date, if a supplement to the related
Prospectus is required to be filed, (y) forty-five (45) days after such date,
if a post-effective amendment to the Shelf Registration Statement or an
additional Shelf Registration Statement is required to be filed or (z) ten (10)
Business Days after the expiration of any Deferral Period in effect when the
Notice and Questionnaire is received by the Company:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
a Subsequent Shelf Registration or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a
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supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Registrable
Securities (subject to the rights of the Company under Section
3(b) to create a Deferral Period) in accordance with applicable
law and, if the Company shall file a post-effective amendment to
the Shelf Registration Statement, use its commercially
reasonable efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as
practicable, but in any event by the date (the "Amendment
Effectiveness Deadline Date") that is forty-five (45) days after
the date such post-effective amendment is required by this
clause to be filed;
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(d)(i); provided that if
such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the
Deferral Period. Notwithstanding anything contained herein to
the contrary, (i) the Company shall be under no obligation to
name any Holder that has not delivered a fully completed and
legible Notice and Questionnaire, together with such other
information as the Company may reasonably request, to the
Company in accordance with this Section 2(d) and (ii) the
Amendment Effectiveness Deadline Date shall be extended by up to
ten (10) Business Days from the expiration of a Deferral Period
(and the Company shall incur no obligation to pay Liquidated
Damages during such extension) if such Deferral Period shall be
in effect on the Amendment Effectiveness Deadline Date.
3. Liquidated Damages.
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(a) The Company and the Initial Purchaser agree that the
Holders of Notes that are Registrable Securities will suffer damages if the
Company fails to fulfill its obligations under Section 2 hereof and that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay liquidated damages on the Notes that are
Registrable Securities ("Liquidated Damages") under the circumstances and to
the extent set forth below (each of which shall be given independent effect;
each a "Registration Default"):
(i) if the Initial Shelf Registration is not filed on or prior
to the Filing Date, then commencing on the day after the Filing Date,
Liquidated Damages shall accrue on the Notes that are Registrable
Securities at a rate of 0.50% per annum on the aggregate principal
amount of all such Notes then outstanding;
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(ii) if a Shelf Registration is not declared effective by the
SEC on or prior to the Effectiveness Date, then commencing on the day
after the Effectiveness Date, Liquidated Damages shall accrue on the
Notes that are Registrable Securities at a rate of 0.50% per annum on
the aggregate principal amount of all such Notes then outstanding;
(iii) if a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than as permitted under Section 3(b)),
then commencing on the day after the date such Shelf Registration
ceases to be effective, Liquidated Damages shall accrue on the Notes
that are Registrable Securities at a rate of 0.50% per annum on the
aggregate principal amount of all such Notes then outstanding;
(iv) if any post-effective amendment filed pursuant to Section
2(d)(i) has not become effective under the Securities Act on or prior
to the Amendment Effectiveness Deadline Date, then commencing on the
day after the Amendment Effectiveness Deadline Date, Liquidated
Damages shall accrue on the Notes that are Registrable Securities at
a rate of 0.50% per annum on the aggregate principal amount of all
such Notes then outstanding; and
(v) if the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period
pursuant to Section 3(b), then commencing on the day that caused the
limit on the aggregate duration of Deferral Periods to be exceeded,
Liquidated Damages shall accrue on the Notes that are Registrable
Securities at a rate of 0.50% per annum on the aggregate principal
amount of all such Notes then outstanding;
provided that Liquidated Damages on the Notes that are Registrable Securities
may not accrue under more than one of the foregoing clauses (i), (ii), (iii),
(iv) and (v) at any one time; provided further that in no event shall
Liquidated Damages accrue at a rate per annum exceeding 0.50% of the aggregate
principal amount of the Notes that are Registrable Securities then outstanding;
and provided further that (1) upon the filing of the Initial Shelf Registration
as required hereunder (in the case of clause (a)(i) of this Section 3), (2)
upon the effectiveness of a Shelf Registration as required hereunder (in the
case of clause (a)(ii) of this Section 3), (3) upon the effectiveness of a
Shelf Registration which had ceased to remain effective (in the case of clause
(a)(iii) of this Section 3), (4) upon the effectiveness of a post-effective
amendment as required hereunder (in the case of clause (a)(iv) of this Section
3), or (5) upon the termination of the Deferral Period that caused the limit on
the aggregate duration of Deferral Periods to be exceeded (in the case of
clause (a)(v) of this Section 3), Liquidated Damages on the Notes that are
Registrable Securities as a result of such clause shall cease to accrue. It is
understood and agreed that, notwithstanding any provision to the contrary, no
Liquidated Damages shall accrue on any Notes that are Registrable Securities
that are then covered by, and may be sold under, an effective Shelf
Registration Statement.
(b) Notwithstanding Section 3(a), the Company, upon written notice to
the Holders, shall be permitted to suspend the availability of a Registration
Statement covering the Registrable Securities for any bona fide reason
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whatsoever for up to 45 consecutive days (the "Deferral Period") in any 90-day
period without being obligated to pay Liquidated Damages; provided that
Deferral Periods may not total more than 90 days in the aggregate in any
twelve-month period. The Company shall not be required to specify in the
written notice to the Holders the nature of the event giving rise to the
Deferral Period.
(c) So long as Notes remain outstanding, the Company shall notify the
Trustee within five Business Days after each and every date on which an event
occurs in respect of which Liquidated Damages are required to be paid. Any
amounts of Liquidated Damages due pursuant to clause (a)(i), (a)(ii), (a)(iii),
(a)(iv) or (a)(v) of this Section 3 will be payable in cash semiannually on
June 6 and December 6 of each year (each, a "Damages Payment Date"), commencing
with the first such Damages Payment Date occurring after any such Liquidated
Damages commences to accrue, to Holders to whom regular interest is payable on
the Damages Payment Date, with respect to Notes that are Registrable
Securities, provided that any Liquidated Damages accrued with respect to any
Note or portion thereof called for redemption by the Company on a redemption
date or converted into Underlying Shares on a conversion date prior to the
Damages Payment Date, shall, in any such event, be paid instead to the Holder
who submitted such Note or portion thereof for redemption or conversion on the
applicable redemption date or conversion date, as the case may be, on such date
(or promptly following the conversion date, in the case of conversion). The
amount of Liquidated Damages for Notes that are Registrable Securities will be
determined by multiplying the applicable rate of Liquidated Damages by the
aggregate principal amount of all such Notes then outstanding on the first
Damages Payment Date following such Registration Default in the case of the
first such payment of Liquidated Damages with respect to a Registration Default
(and thereafter at the next succeeding Damages Payment Date until the cure of
such Registration Default), multiplied by a fraction, the numerator of which is
the number of days such Liquidated Damages rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed),
and the denominator of which is 360. The parties agree that the sole monetary
damages payable for a violation of the terms of this Agreement with respect to
which Liquidated Damages are expressly provided shall be such Liquidated
Damages.
4. Registration Procedures.
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In connection with its registration obligations pursuant to Section 2
hereof, the Company shall:
(a) Prepare and file with the SEC, on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section 2
hereof, and use its commercially reasonable efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided that before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Company shall furnish to and afford
the Initial Purchaser a reasonable opportunity to review copies of all such
documents proposed to be filed (in each case, where possible, at least three
Business Days prior to such filing, or such later date as is reasonable under
the circumstances) and to reflect in each such document when so filed
reasonable comments of the Initial Purchaser.
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(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period;
cause the related Prospectus to be supplemented by any prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) promulgated under the Securities
Act; and comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all Registrable Securities covered by such
Registration Statement during the Effectiveness Period in accordance with the
intended methods of distribution set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) Notify the Selling Holders and Designated Counsel, if any,
promptly (but in any event within two Business Days), (i) when a Prospectus or
any prospectus supplement or post-effective amendment to a Registration
Statement has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any Holder
may, upon request, obtain, at the sole expense of the Company, one conformed
copy of such Registration Statement or post-effective amendment, including
financial statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any Prospectus or the initiation of
any proceedings for that purpose, (iii) of the happening of any event, the
existence of any condition or any information becoming known (but not the
nature or details concerning such event, condition or information) that makes
any statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (provided,
however, that no notice of the Company pursuant to this clause (iii) shall be
required in the event that the Company promptly files a prospectus supplement
to update the Prospectus or a Current Report on Form 8-K or other appropriate
Exchange Act report that is incorporated by reference into the Registration
Statement, which, in either case, contains the requisite information with
respect to such event, condition or information that results in such
Registration Statement no longer containing any untrue statement of a material
fact or omitting to state a material fact necessary to make the statements
contained therein not misleading) and (iv) of the Company's determination that
a post-effective amendment to a Registration Statement would be appropriate
which notice may in any case, at the discretion of the Company state that it
constitutes a notice of deferral under Section 3(b) hereof.
(d) Use its commercially reasonable efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus and, if any such order
is issued, to use its commercially reasonable efforts to obtain the withdrawal
of any such order at the earliest possible moment or if any such order or
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suspension is during any Deferral Period, at the earliest possible time after
such Deferral Period ends, and provide prompt notice to the Selling Holders of
the withdrawal of any such order.
(e) Furnish as promptly as practicable after the filing of such
documents with the SEC to each Selling Holder and Designated Counsel, if any,
upon request and at the sole expense of the Company, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, and, if
requested, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(f) Deliver to each Selling Holder and Designated Counsel, if any, at
the sole expense of the Company, as many copies of the Prospectus (including
each form of preliminary prospectus) and each amendment or supplement thereto
and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to Sections 4A(a) and 4A(c) hereof, the
Company hereby consents (except during any Deferral Period) to the use of such
Prospectus and each amendment or supplement thereto by each of the Selling
Holders of Registrable Securities and dealers, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto in the manner set forth therein.
(g) Cause the Company's counsel to perform Blue Sky law
investigations and file registrations and qualifications required to be filed
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities or offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Selling Holder reasonably requests, use its commercially
reasonable efforts to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable under Blue Sky laws to enable the disposition
in such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement in the manner set forth therein; provided that the
Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (iii) subject itself to taxation in any such
jurisdiction where it is not then so subject.
(h) Cooperate with the Selling Holders and their respective counsel
to facilitate the timely preparation and delivery of certificates representing
shares of Registrable Securities to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such shares of Registrable Securities to
be in such denominations and registered in such names as the Selling Holders
may reasonably request.
(i) Upon the occurrence of any event contemplated by Section
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable prepare and
(subject to Section 4(a) hereof) file with the SEC, at the sole expense of the
Company, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or
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deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, any such Prospectus will not 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, in the light
of the circumstances under which they were made, not misleading.
(j) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee for the Notes
and the transfer agent for the Common Stock with certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Securities.
(k) During the Effectiveness Period, if requested in connection with
a disposition of Registrable Securities pursuant to a Registration Statement,
make available at reasonable times for inspection by one or more
representatives of the Selling Holders and any attorney or accountant retained
by any such Selling Holders (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, at such time or times as
shall be mutually convenient for the Company and the Inspectors as a group, all
financial and other records, pertinent corporate documents and instruments of
the Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement; provided
that the Company shall have no obligation to provide any such information prior
to the execution by the party receiving such information of a confidentiality
agreement in a form reasonably acceptable to the Company. Records that the
Company determines, in good faith, to be confidential and any Records that it
notifies the Inspectors are confidential shall not be used for any purpose
other than satisfying "due diligence" obligations under the Securities Act and
exercising rights under this Agreement and shall not be disclosed by any
Inspector unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or material omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for the Selling Holder or any
Inspector, necessary or advisable in connection with any action, claim, suit or
proceeding, directly involving or potentially involving such Selling Holder or
Inspector and arising out of, based upon, relating to, or involving this
Agreement or any transactions contemplated hereby or arising hereunder or (iv)
the information in such Records has been made generally available to the public
other than through the acts of such Inspector; provided that prior notice shall
be provided as soon as practicable to the Company of the potential disclosure
of any information by such Inspector pursuant to clauses (ii) or (iii) of this
sentence to permit the Company to obtain a protective order (or waive the
provisions of this paragraph (k)). Each Inspector shall take such actions as
are reasonably necessary to protect the confidentiality of such information (if
practicable) to the extent such actions are otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the Holder or any
Inspector, unless and until such information in such Records has been made
generally available to the public other than as a result of a breach of this
Agreement.
-11-
(l) During the Effectiveness Period, comply with all applicable rules
and regulations of the SEC applicable to any Registration Statement and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of the
first fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(m) Cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the Trustee
and the Holders of the Registrable Securities and their respective counsel to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the TIA; and execute, and use all
reasonable efforts to cause the Trustee to execute, all documents as may be
required to effect such changes and all other forms and documents required to
be filed with the SEC to enable the Indenture to be so qualified in a timely
manner.
(n) If requested by Designated Counsel, if any, or the Holders of a
majority in Amount of Registrable Securities, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
Designated Counsel, if any, or such Holders reasonably determine is necessary
to be included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as reasonably practicable
after the Company has received notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment and (iii) supplement
or make amendments to such Registration Statement.
(o) Use its commercially reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby, provided that the
Company shall not be required to take any action in connection with an
Underwritten Offering.
4A. Holders' Obligations. (a) Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 2(d) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Selling
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Selling Holder not misleading and any other information regarding such
Selling Holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of
distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the time
of such sale contain any untrue statement of a material fact relating to or
provided by such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating
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to or provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which
they were made, not misleading.
(b) The Company may require each Selling Holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such additional information regarding such Holder and its plan of
distribution of such Registrable Securities as the Company may, from time to
time, reasonably request to the extent necessary or advisable to comply with
the Securities Act. The Company may exclude from such registration the
Registrable Securities of any Selling Holder if such Holder fails to furnish
such additional information within twenty (20) Business Days after receiving
such request. Each Selling Holder as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed so that the information previously furnished to the Company by
such Holder is not materially misleading and does not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made.
(c) Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon actual receipt of any notice from the
Company suspending the availability of the Registration Statement pursuant to
Section 3(b) hereof, or upon the happening of any event of the kind described
in Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof (each Holder agrees to keep
any such notice confidential), such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(i) hereof, or
until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and it has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus thereto.
5. Registration Expenses.
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company,
including, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses of compliance with state securities or
Blue Sky laws, including, without limitation, reasonable fees and disbursements
of counsel in connection with Blue Sky qualifications of the Registrable
Securities and determination of the eligibility of the Registrable Securities
for investment under the laws of such jurisdictions as provided in Section 4(g)
hereof), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the Holders of a majority in Amount of
Registrable Securities included in any Registration Statement, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) Securities Act liability insurance, if the Company desires such
insurance, (vi) fees and expenses of all other Persons retained by the Company,
(vii) internal expenses of the Company (including, without limitation, all
salaries and expenses of officers and employees of the Company performing legal
or accounting duties), (viii) the expense of any annual audit, (ix) the fees
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and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (x) the expenses
relating to printing, word processing and distributing all Registration
Statements and any other documents necessary in order to comply with this
Agreement. Notwithstanding anything in this Agreement to the contrary, each
Holder shall pay all brokerage commissions with respect to any Registrable
Securities sold by it and, except as set forth in Section 5(b) below, the
Company shall not be responsible for the fees and expenses of any counsel,
accountant or advisor for the Holders.
(b) The Company shall bear or reimburse the Holders of the
Registrable Securities being registered in a Shelf Registration for the
reasonable fees and disbursements of Designated Counsel.
6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless (x) each Holder
(which, for the absence of doubt, for purposes of this Section 6 shall include
the Initial Purchaser), (y) each Person, if any, who controls (within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) any Holder (any of the Persons referred to in this clause (b)
being hereinafter referred to as a "Controlling Person"), and (z) the
respective officers, directors, partners, employees, representatives and agents
of any Holder (including any predecessor holder) or any Controlling Person (any
person referred to in clause (x), (y) or (z) may hereinafter be referred to as
an "Indemnified Holder"), against any losses, claims, damages or liabilities to
which such Indemnified Holder may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement or Prospectus, or any amendment or supplement
thereto or any related preliminary prospectus or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in the light of the
circumstances under which they were made; provided that the Company will not be
liable under this Section 6(a), (x) to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in any such
Registration Statement or Prospectus, or any amendment or supplement thereto or
any related preliminary prospectus in reliance upon and in conformity with
written information relating to any Holder furnished to the Company by or on
behalf of such Holder specifically for use therein, (y) with respect to any
untrue statement or alleged untrue statement, or omission or alleged omission
made in any preliminary prospectus if the person asserting any such loss,
claim, damage or liability who purchased Registrable Securities which are the
subject thereof did not receive a copy of the Prospectus (or the preliminary
prospectus as then amended or supplemented if the Company shall have furnished
-14-
such Indemnified Holder with such amendment or supplement thereto on a timely
basis) at or prior to the written confirmation of the sale of such Registrable
Securities to such person and, in any case where such delivery is required by
applicable law, the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in such preliminary prospectus was
corrected in the Prospectus (or the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto on a timely basis) or (z) arising from the
offer or sale of Registrable Securities during any Deferral Period, if notice
thereof was given to such Holder. The Company shall notify such Indemnified
Holder promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement that involves the
Company or such Indemnified Holder.
(b) Subject to Section 6(d) below, the Company agrees to reimburse
each Indemnified Holder upon demand for any legal or other out-of-pocket
expenses reasonably incurred by such Indemnified Holder in connection with
investigating or defending any such loss, claim, damage or liability, any
action or proceeding or in responding to a subpoena or governmental inquiry
related to the offering of the Registrable Securities, whether or not such
Indemnified Holder is a party to any action or proceeding. In the event that it
is finally judicially determined that an Indemnified Holder was not entitled to
receive payments for legal and other expenses pursuant to this Section 6, such
Indemnified Holder will promptly return all sums that had been advanced
pursuant hereto.
(c) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and officers and each Person who
controls the Company (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) to the same extent as the indemnity
provided in Section 6(a) from the Company to each Holder, but only with
reference to such losses, claims, damages or liabilities which are caused by
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with information relating to a Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement or Prospectus, or any amendment or supplement thereto or
any related preliminary prospectus. The liability of any Holder under this
Section 6(c) shall in no event exceed the proceeds received by such Holder from
sales of Registrable Securities giving rise to such obligation.
(d) In case any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
Section 6(a) or (c), such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing. No indemnification provided for in Section
6(a) or (c) shall be available to any Person who shall have failed to give
notice as provided in this Section 6(d) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was materially prejudiced by the failure to give such notice. Nevertheless, the
failure to give such notice shall not relieve the Indemnifying Person or
Persons from any liability which it or they may have to the Indemnified Person
for contribution or otherwise than on account of the provisions of Section 6(a)
or (c). In case any such proceeding shall be brought against any Indemnified
Person and it shall notify the Indemnifying Person of the commencement thereof,
the Indemnifying Person shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other Indemnifying Person similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to such Indemnified Person and shall pay as incurred (or within 30 days of
presentation) the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
-15-
to retain its own counsel at its own expense. Notwithstanding the foregoing,
the Indemnifying Person shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the Indemnified
Person in the event (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the retention of such counsel, (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the Indemnifying Person shall have
failed to assume the defense of and employ counsel reasonably acceptable to the
Indemnified Person within a reasonable period of time after notice of
commencement of the action. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such Indemnified Persons. Such firm shall be designated
in writing by Holders of a majority in Amount of Registrable Securities in the
case of parties indemnified pursuant to Section 6(a) and by the Company in the
case of parties indemnified pursuant to Section 6(c). The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify the
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. In addition, the Indemnifying Person will not, without
the prior written consent of the Indemnified Person, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding of which indemnification may be sought hereunder (whether or not
any Indemnified Person is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Person from all liability arising out
of such claim, action or proceeding.
(e) To the extent the indemnification provided for in this Section 6
is unavailable to or insufficient to hold harmless an Indemnified Person under
Section 6(a) or (c) in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, except by
reason of the exceptions set forth in Section 6(a) or (c) or the failure of the
Indemnified Person to give notice as required in Section 6(d), then each
Indemnifying Person shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying
Person on the one hand and the Indemnified Person on the other hand from the
offering of the Notes pursuant to the Purchase Agreement and the Registrable
Securities pursuant to any Shelf Registration. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each Indemnifying Person shall contribute to such amount paid or
payable by such Indemnified Person in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Indemnifying Person on the one hand and the Indemnified Person on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company shall be deemed to be equal to the total net proceeds
(before deducting expenses) received by the Company under the Purchase
-16-
Agreement from the offering and sale of the Registrable Securities giving rise
to such obligations. The relative benefits received by any Holder shall be
deemed to be equal to the value of receiving registration rights for the
Registrable Securities under this Agreement. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand, such Indemnified Holder on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(f) The Company and the Initial Purchaser agree that it would not be
just and equitable if contribution pursuant to Section 6(e) 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 6(e). The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to in Section 6(e) shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such action or claim or enforcing any rights hereunder.
Notwithstanding the provisions of Section 6(e) and (f), (i) in no event shall
any Holder be required to contribute any amount in excess of the amount by
which the net proceeds received by such Holder from the offering or sale of the
Registrable Securities pursuant to a Shelf Registration Statement exceeds the
amount of damages which such Holder would have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) 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.
(g) Except as otherwise provided in this Section 6, any losses,
claims, damages, liabilities or expenses for which an Indemnified Person is
entitled to indemnification or contribution under this Section 6 shall be paid
by the Indemnifying Person to the Indemnified Person as such losses, claims,
damages, liabilities or expenses are incurred (or within 30 days of
presentation).
(h) The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
(i) The indemnity and contribution agreements contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling the Company
and (iii) acceptance of and payment for any of the Registrable Securities.
7. Rules 144 and 144A.
------------------
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner in accordance
with the requirements of the Securities Act and the Exchange Act and, if at any
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time before the expiration of the Effectiveness Period the Company is not
required to file such reports, it will, upon the request of any Holder, make
available such information necessary to permit sales pursuant to Rule 144A
under the Securities Act. The Company further covenants that, until the
Effectiveness Period has expired, it will use all reasonable efforts to take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 and Rule 144A
under the Securities Act, as such rules may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the SEC. The Company
will provide a copy of this Agreement to prospective purchasers of Registrable
Securities identified to the Company by the Initial Purchaser upon request.
Upon the request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it is subject to and has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
8. Underwritten Registrations.
--------------------------
No Holder of Registrable Securities may participate in any
Underwritten Registration hereunder.
9. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement
or otherwise conflicts with the provisions hereof.
(b) Adjustments Affecting Registrable Securities. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class with the intent of adversely affecting the ability of the
Holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of the Company and the Holders of not less than a majority in
Amount of Registrable Securities; provided that Section 6 and this Section 9(c)
may not be amended, modified or supplemented without the prior written consent
of the Company and each Holder (including, in the case of an amendment,
modification or supplement of Section 6, any Person who was a Holder of
Registrable Securities disposed of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in Amount of
Registrable Securities being sold by such Holders pursuant to such Registration
Statement. Each Holder of Registrable Securities outstanding at the time of any
amendment, modification, supplement, waiver, or consent or thereafter shall be
-18-
bound by any such amendment, modification, supplement, waiver, or consent
effected pursuant to this Section, whether or not any notice of such amendment,
modification, supplement, waiver, or consent is delivered to such Holder.
(d) Notices. All notices, requests and other communications
(including without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing and
delivered by hand-delivery, registered first-class mail, next-day air courier
or facsimile:
(1) if to a Holder of Registrable Securities, at the most
current address of such Holder set forth on (x) the records of the registrar
under the Indenture, in the case of Holders of Notes, and (y) the stock ledger
of the Company, in the case of Holders of common stock of the Company, unless,
in either such case, any Holder shall have provided notice information in a
Notice and Questionnaire or any amendment thereto, in which case such
information shall control.
(2) if to the Initial Purchaser:
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Equity Capital Markets
with a copy to the General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(3) if to the Company:
American Equity Investment Life Holding Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
All such notices, requests and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; the earlier
of the date indicated on the notice of receipt and five (5) Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when the addressor
receives facsimile confirmation, if sent by facsimile during normal business
hours, and otherwise on the next Business Day during normal business hours.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties
hereto, including the Holders; provided that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, including via
facsimile, each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN MANHATTAN,
NEW YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable.
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(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held by
the Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Securities are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Company on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof
and thereof are merged herein and replaced hereby.
[Signature page follows]
-21-
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer and
General Counsel
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
[Signature Page to Registration Rights Agreement]