Exhibit 9
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VOTING TRUST AGREEMENT
AMONG
AMERICAN EQUITY INVESTMENT
LIFE HOLDING COMPANY
(COMPANY)
FARM BUREAU LIFE INSURANCE COMPANY
(TRANSFEROR)
AND
XXXXX X. XXXXX
XXXXX X. XXXXXXX
XXXXX X. XXXXXXXXXX
(VOTING TRUSTEES)
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December 30, 1997
THIS VOTING TRUST AGREEMENT is entered into this 30th day of December, 1997
by and among AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY (the "Company");
FARM BUREAU LIFE INSURANCE COMPANY (the "Transferor"); and XXXXX X. XXXXX, XXXXX
X. XXXXXXX, and XXXXX X. XXXXXXXXXX (the "Voting Trustees").
WHEREAS, the Company is conducting a private placement of shares of its
Common Stock, par value $1 per share (the "Shares") pursuant to a private
placement memorandum dated December 1, 1997;
WHEREAS, subject to certain terms and conditions, including the
establishment of a Voting Trust pursuant to this Agreement, Transferor has
subscribed to purchase 1,562,500 Shares;
WHEREAS, the parties deem it in the best interests of the Company and of
themselves to act together concerning the direction of the affairs of the
Company in order to secure continuity and stability of policy and management, to
provide constructive administration, to promote the continuous and uninterrupted
development of business policies and to that end to vest a portion of the voting
power held by Transferor in the Voting Trustees as hereinafter provided;
WHEREAS, for accounting purposes Transferor desires to retain the voting
power on that part of its Shares which represents a 20% ownership interest in
the voting securities of the Company;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following definitions
shall apply:
A. "Adjustment Shares" shall have the meaning set forth in Section
3.A.
B. "Common Stock" shall mean the authorized and outstanding shares of
Common Stock, par value $1 per share, of the Company, and any other class
or series of shares now or hereafter authorized and outstanding which have
the right to vote at regular meetings of the shareholders.
C. "Initial Share Certificate" shall mean the certificate evidencing
the purchase of 1,562,500 shares of Common Stock to be issued to
Transferor.
D. "Retained Interest" shall mean that portion of the total number of
shares of Common Stock beneficially owned by Transferor which is equal to
twenty percent (20%) of the total number of shares of Common Stock
outstanding on any date of determination.
E. "Subscription Shares" shall have the meaning set forth in Section
6.
F. "Voting Trust Certificates" shall mean the certificate(s)
evidencing the shares of Common Stock held by the Voting Trustees hereunder
which shall be substantially in the form of Exhibit A attached hereto.
G. "Voting Trust Interest" shall mean that number of shares of Common
Stock equal to the difference between the total number of such shares
beneficially owned by Transferor and the number of shares representing the
Retained Interest, as redetermined from time to time in accordance with
Section 3 below.
2. Deposit of Voting Trust Shares.
A. Initial Deposit. Upon the execution of this Agreement, Transferor
shall deposit with the Voting Trustees the Initial Share Certificate, which
shall be endorsed or shall be accompanied by such instruments of transfer
as to enable the Voting Trustees to cause shares representing the Voting
Trust Interest to be transferred into the names of the Voting Trustees and
to cause shares representing the Retained Interest to be reissued to the
Transferor. In exchange for the receipt of the Initial Share Certificate,
the Voting Trustees shall issue and deliver to the Transferor a Voting
Trust Certificate for the shares representing the Voting Trust Interest.
B. Reissuance of Share Certificates. The Voting Trustees shall
surrender the Initial Share Certificate to the Company for cancellation and
reissuance. Company shall thereupon reissue (i) a certificate representing
the Voting Trust Interest in the names of the Voting Trustees and (ii) a
certificate representing the Retained Interest in the name of the
Transferor.
3. Required Annual Adjustments.
A. Recalculation of Retained Interest. Thirty days before the record
date of any meeting of Company's shareholders, and on December 1 of each
year during the term of this Agreement, the Voting Trustees shall determine
the percentage equal to the quotient of (i) the number of shares then owned
of record by Transferor divided by (ii) the total number of shares of
Common Stock outstanding on such date. If such percentage is less than
twenty percent (20%), then the Voting Trustees shall determine the number
of shares of Common Stock which must be added to the numerator of the
fraction described in the preceding sentence to cause the percentage
derived from such fraction to equal twenty percent (20%) (the "Adjustment
Shares").
B. Transfer of Adjustment Shares. On or before such record date, or
December 31 of each year during the term of this Agreement, respectively,
the Voting Trustees shall cause the number of Adjustment Shares, if any, to
be withdrawn from this Voting Trust and retransferred to the Transferor by
delivering the certificate representing the Voting Trust Interest to the
Company along with written instructions for the cancellation and reissuance
of the shares evidenced thereby. Company shall thereupon reissue (i) a
certificate in the names of the Voting Trustees representing that number of
shares equal to the difference between the number of shares surrendered and
the Adjustment Shares and (ii) a certificate in the name of the Transferor
representing the Adjustment Shares.
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C. Replacement of Voting Trust Certificate. Simultaneously with the
delivery of the Adjustment Shares to Transferor, Transferor shall surrender
any existing Voting Trust Certificates to the Trustees and the Trustees
shall reissue to Transferor a Voting Trust Certificate for the number of
shares then held by the Trustees.
4. Rights of Voting Trustees.
A. Voting Rights. Until this Agreement is terminated in accordance
with Section 10 below and all Voting Trust Certificates shall have been
surrendered by Transferor to the Voting Trustees, the Voting Trustees shall
exercise, in person or by proxy, all voting rights and powers, and may take
part in and consent to any corporate or stockholders' action of any kind
whatsoever, in respect of the shares of Common Stock held by the Voting
Trustees. The right to vote shall include, without limitation, the right to
vote for the election of directors; the right to vote in favor of or
against any resolution or proposed action of any character whatsoever,
which may be presented at any meeting or require the consent of the
Company's stockholders; and the right to vote in favor of or against any
consolidation, merger, reorganization, recapitalization or transfer of any
interest in the assets of the Company.
B. Manner of Acting. Any act, decision or vote of the Voting Trustees
shall be conclusive and binding if a majority of the Voting Trustees concur
in such act decision or vote, and the Voting Trustees shall keep a written
account of all such actions, decisions and votes.
C. Compensation. The Voting Trustees shall serve without compensation
but shall be entitled to reimbursement from the Company for their
reasonable out-of-pocket costs and expenses incurred in connection with the
performance of their duties hereunder upon submission of written receipts
or other written substantiation of such costs and expenses.
D. Waiver of Liability. Transferor hereby releases Voting Trustees
from and holds each of them harmless from any claims, demands, damages
and/or liability of any kind for any action taken or omitted to be taken by
Voting Trustees in connection with this Agreement, other than as a result
of their gross negligence or willful misconduct.
5. Dividends.
A. Cash Dividends. In the event the Company declares a cash dividend
on outstanding shares of Common Stock, Company shall pay directly to
Transferor the amount of such dividends payable on the shares held by the
Voting Trustees as well as shares held of record by Transferor.
B. Stock Dividends - Voting. In the event the Company declares a
dividend payable in shares of Common Stock or other voting securities, the
Company shall distribute to the Voting Trustees all certificates for such
dividends distributable with respect to the shares then held by the Voting
Trustee. Shares of Common Stock or other voting securities received by the
Voting Trustees as dividends shall be subject to all terms and conditions
of this Agreement, and the Voting Trustees shall issue to Transferor a
Voting Trust Certificate representing the number of such shares.
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C. Stock Dividends - Non Voting. In the event the Company declares a
dividend payable in shares of nonvoting securities of the Company, Company
shall distribute to the Transferor all certificates for such dividends
distributable with respect to the shares held by the Voting Trustees as
well as shares held of record by the Transferor.
6. Subscription Rights. If any shares of Common Stock or other
securities of the Company are offered for subscription to the holders of
its Common Stock (hereinafter referred to as "Subscription Shares") the
Voting Trustees, within ten (10) days after receipt of notice of such offer
of subscription rights, shall mail a copy thereof to Transferor. If
Transferor desires to exercise such subscription rights, Transferor shall
timely comply with all requirements thereof and shall make payment
therefore directly to the Company. If the Subscription Shares consist of
Common Stock or other voting securities of Company, Company shall deliver
the certificates for all Subscription Shares to which Transferor is
beneficially entitled to the Voting Trustees, who shall hold such shares
subject to all terms and conditions of this Agreement, and who shall issue
to Transferor a Voting Trust Certificate representing the number of
Subscription Shares. If the Subscription Shares consist of nonvoting
securities of the Company, Company shall deliver directly to Transferor the
certificates for all such shares to which Transferor is beneficially
entitled.
7. Extraordinary Events.
A. Merger or Sale of Assets. In the event Company (i) is merged into
or consolidated with and into another entity, (ii) transfers all or
substantially all of its assets to another entity or entities, the
consideration payable with respect to the shares of Common Stock held by
the Voting Trustees shall be payable directly to Transferor. If the Voting
Trustees shall receive all or any part of such consideration, Voting
Trustees shall promptly remit same to Transferor.
B. Change of Control. In the event of a change of control, as
hereinafter defined, of Company or its subsidiary, American Equity
Investment Life Insurance Company ("AEI Life"), subject to the prior
approval of the Iowa Insurance Division, upon the written request of the
Transferor, the Voting Trustees shall transfer to the Transferor all shares
then held in this Trust all of which shall be endorsed or shall be
accompanied by such instruments necessary to effectuate the transfer to
Transferor. A "change of control" shall be deemed to have occurred when:
(1) any person, organization or association of persons or
organizations acting in concert, excluding affiliates of the Company
itself, shall acquire more than ten percent (10%) of the outstanding
voting stock of the Company or AEI Life;
(2) any person, organization or association of persons or
organizations acting in concert shall succeed in electing two or more
directors in any one election in opposition to those proposed by
management; or
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(3) Xxxxx X. Xxxxx shall cease to be an officer, director or
shareholder of the Company for any reason.
In the event such transfer is not approved by the Iowa Insurance Division,
Transferor may sell the shares in a transaction described in paragraph C
below, subject to the conditions set forth in such paragraph.
C. Sale of Shares by Transferor. In the event Transferor sells the
shares held in the Trust in a registered offering to the public pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), or pursuant
to Rule 144 promulgated by the Securities and Exchange Commission under the
Securities Act, subject to the approval of the Iowa Insurance Division, if
required with respect to such sale, and subject to the approval of the
Voting Trustees if the sale is made under Rule 144, the Voting Trustees
shall transfer to the Transferor all shares then held in this Trust all of
which shall be endorsed or shall be accompanied by such instruments
necessary to effectuate the transfer to Transferor.
8. Transfer of Voting Trust Certificate. The Voting Trust Certificate may
be transferred on the books of the Voting Trustees upon the surrender of such
Certificate, properly endorsed by the Transferor or other registered holder.
Title to the Voting Trust Certificate when duly endorsed shall, to the extent
permitted by law, be transferable with the same effect as in the case of
negotiable instruments. Every transferee of a trust certificate shall by the
acceptance of such certificate become a party with like effect as though an
original party hereto, and all references to the Transferor herein shall be
deemed to embrace any such transferee.
9. Regulatory Approvals. Notwithstanding anything herein to the contrary,
the Trustees shall make no transfer of the shares held in this Trust to the
Transferor or to any other party, whether upon termination of this Trust under
Section 11 below or under any other circumstances, unless and until the Iowa
Insurance Division has been notified of such proposed transfer and has given any
approval required by applicable law or regulations.
10. Successor Trustees. Any Voting Trustee may resign upon thirty days
prior written notice to the Transferor and the remaining Voting Trustees. In
such event, or upon the death or disability of a Voting Trustee, the following
individuals shall be requested to serve as successors for each of the initial
Voting Trustees, and shall become a successor Voting Trustee effective upon his
or her written acceptance of this Trust:
Xxxxx X. Xxxxx ............................ Xxxx Xxxxxxxx
Xxxxx X. Xxxxxxx .......................... X. X. Xxxxxxxxxx, III
Xxxxx X. Xxxxxxxxxx ....................... Xxxxx X. Xxxxxxx
In the event one of the successors named above is unable or unwilling to serve
as a Voting Trustee hereunder, the remaining Voting Trustees shall by their
unanimous consent select the successor Voting Trustee effective upon his or her
written acceptance of this Trust.
11. Term.
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A. Initial Term. This Voting Trust shall have an initial term of ten
(10) years, and, accordingly, will terminate on December 31, 2007, unless
earlier terminated upon (i) the unanimous written consent of the Transferor
and the Voting Trustees or (ii) upon the exchange or liquidation of all of
the shares of Common Stock held by the Voting Trustees in connection with a
transaction described in Section 7 above.
B. Extended Duration. At any time within 180 days prior to December
31, 2007, the Transferor, by written notice to the Voting Trustees and
subject to their written consent, may extend the term of this Trust for an
additional period not to exceed ten (10) years.
12. Delivery of Documents. Pursuant to Section 490.730 of the Iowa Code
(1997), a copy of this Agreement together with an instrument stating the
Transferor's name, and address, and the number and class of shares transferred
to this Trust shall be delivered to the Company's principal office upon
execution hereof. In the event of any extension of the duration of this Trust
under Section 10.B above, a copy of the written extension agreement and a list
of beneficial owners of the shares then held by the Voting Trustees shall be
delivered to the Company' principal office upon execution thereof.
13. Notices. Any notice required to be given to any party pursuant to any
provision of this Agreement shall be in writing, shall be given by certified
mail, return receipt requested, or sent by fax, or delivered by hand, and, if
mailed, shall be deemed received one day after having been deposited in a
receptacle for United States mail, postage prepaid, addressed as follows, or, if
sent by fax, shall be deemed received on the date of confirmation of
transmission to the following fax numbers:
If to Company: American Equity Investment Life Holding Company
Attention: X.X. Xxxxx, President
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Fax No. (000) 000-0000
If to Transferor: Farm Bureau Life Insurance Company
Attention: Xxxxxx X. Xxxxxx, CEO
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Fax. No. (000) 000-0000
If to Voting Trustees: X. X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxxx
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Fax No. (000) 000-0000
Any party may change his/its address for giving of notice or fax number by
giving notice to the other parties to this Agreement in accordance with the
provisions hereof.
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13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument. This Agreement may be executed
by the parties hereto by the sending of a facsimile executed copy of this
Agreement to the other parties to this Agreement so long as an original
signature is provided within seven (7) calendar days thereafter.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa. This Agreement shall be deemed to
have been negotiated and entered into in Polk County, Iowa.
15. Severability. In case any one or more of the provisions hereof is
determined to be invalid, illegal or unenforceable in any respect, the validity
of the remaining provisions will in no way be affected, prejudiced or disturbed
thereby.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all negotiations, preliminary agreements and all prior and
contemporaneous discussions and understandings of the parties in connection with
the subject matters hereof. Except as otherwise provided herein, no covenant,
representation or condition not expressed in this Agreement, or in an amendment
hereto, shall be binding upon the parties hereto or shall affect or be effective
to interpret, change or restrict the provisions of this Agreement.
17. Amendments. No amendment, change or modification of any of the terms,
provisions or conditions of this Agreement shall be effective unless made in
writing and signed by the party against whom such amendment, change or
modification is sought to be enforced. Waiver of any provision of this Agreement
shall not be deemed a waiver of future compliance therewith and such provisions
shall remain in full force and effect.
AMERICAN EQUITY INVESTMENT
HOLDING COMPANY
By: /s/ X. X. Xxxxx
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X. X. Xxxxx, President
FARM BUREAU LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Executive Vice
President and General Manager
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VOTING TRUSTEES:
/s/ X. X. Xxxxx
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X. X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
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EXHIBIT A
VOTING TRUST CERTIFICATE
This certifies that Farm Bureau Life Insurance Company (the "Holder") is
entitled to all the benefits arising from the deposit with the Voting Trustees
under the Voting Trust Agreement hereinafter mentioned, of certificates for
680,367 shares of the Common Stock, $1 par value (the "Trust Shares"), of
American Equity Investment Life Holding Company, an Iowa corporation (the
"Company"), as provided in such Trust Agreement and subject to the terms
thereof.
This Certificate is issued, received, and held under, and the rights of the
Holder hereof are subject to, the terms of a Voting Trust Agreement dated
December 30, 1997, by and among, the Company, and Holder and the Voting Trustees
named therein. Copies of the Voting Trust Agreement, and of every agreement
amending or supplementing it, are on file in the Company's principal office in
Des Moines, Iowa, and shall be open to the inspection of the Company's
stockholders daily during business hours.) The Holder of this Certificate, by
acceptance hereof, assents and is bound to all the provisions of the Voting
Trust Agreement.
The Voting Trustees shall possess and be entitled to exercise all rights
and powers of an absolute owner of such stock, including the right to vote
thereon for every purpose, and to execute consents in respect thereof for every
purpose, it being expressly stipulated that no voting right passes to the Holder
hereof, or assigns, under this Certificate or any agreement, expressed or
implied.
The Holder, or assigns, is entitled to receive payment equal to the amount
of cash dividends, if any, received by the Voting Trustees upon the Trust
Shares. Dividends received by the Voting Trustees in the Company's common or
other stock having general voting powers shall be payable in voting trust
certificates, in form similar hereto. In the event the Voting Trustees receives
any dividend or distribution other than in cash or Company stock having general
voting powers, the Voting Trustees shall distribute the same to the Holder on
the date of such distribution. In the event of the dissolution or total or
partial liquidation of the Company, the monies, securities, or property received
by the Voting Trustees in respect of the Trust Shares shall be distributed to
the Holder.
Subject to all terms and conditions of the Voting Trust Agreement, this
Ccertificate is transferable on the books of the Voting Trustees at Voting
Trustees's office in Des Moines, Iowa (or elsewhere as designated by the Voting
Trustees), by the Holder hereof, either in person or by attorney duly
authorized, in accordance with the rules established for that purpose by the
Voting Trustees and on surrender of this Certificate properly endorsed. Title to
this certificate when duly endorsed shall, to the extent permitted by law, be
transferable with the same effect as in the case of a negotiable instrument.
IN WITNESS WHEREOF, the Voting Trustees have signed this certificate on the
30th day of December, 1997.
/s/ X. X. Xxxxx
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X.X. Xxxxx
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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