Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is entered into as of
April 30, 1997, by and between American Equity Investment Life Holding Company
(the "Company"), and persons set forth on Exhibit A attached hereto (the
"Stockholders"), and evidences that for good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties hereto agree as
follows:
ARTICLE 1. INTRODUCTION
Section 1. 1. Recitals. The Company and Stockholders have entered into
Subscription Agreements between the Company and each of the Stockholders dated
of even date (the "Subscription Agreements"), to issue and sell up to 233 units
to the Stockholders each consisting of 2,500 shares of common stock, $.1.00 par
value ("Common Stock"), of the Company and 500 stock purchase warrants (the
"Warrants") pursuant to which the registered holder may purchase one share of
Common Stock at a price of $12.00 per share This Agreement shall become
effective upon the issuance of such securities to Stockholders pursuant to the
Subscription Agreements. Certain capitalized terms used in this Agreement are
defined in Article VI hereof; references to sections shall be to sections of
this Agreement.
ARTICLE II. DEMAND REGISTRATION
Section 2. 1. Request. From and after the initial public offering of the
Company's Common Stock, upon the written request of the Initiating Holders,
requesting that the Company effect the registration under the Securities Act of
such Initiating Holders' Registrable Securities and specifying the intended
method of disposition thereof, the Company will promptly give written notice of
such requested registration to the Stockholder Representative who shall notify
any other holders of Registrable Securities of the proposed filing, and
thereupon the Company will use its best efforts to effect the registration under
the Securities Act of the following:
(a) the Registrable Securities which the Company has been requested to
register by such Initiating Holders for disposition in accordance with the
intended method of disposition stated in such request;
(b) all other Registrable Securities the holders of which shall have made a
written request to the Company for registration thereof within 30 days after the
giving of such written notice by the Company; and
(c) all shares of Common Stock which the Company may elect to register in
connection with the offering of Registrable Securities pursuant to this Article
II;
all to the extent requisite to permit the disposition (in accordance with the
intended method of disposition) of the Registrable Securities and the additional
shares of Common Stock, if any, to be registered; provided, however, that the
provisions of this Article II shall not require the Company to effect more than
one registration of Registrable Securities; and, provided, further,
that if the Company is engaged in negotiations in respect of a merger,
acquisition, combination or other business opportunity and in the good faith
judgment of the Board of Directors of the Company such transaction would be
adversely affected by such registration, the Company shall be entitled to
postpone the filing of such registration statement until such transaction would
not be adversely affected by such filing but, in any event, for a period not to
exceed 180 days.
Section 2.2. Registration Statement Form. Registrations under this Article
II shall be on an appropriate registration form of the Commission (i) as shall
be selected by the Company and (ii) as shall permit the disposition of such
Registrable Securities in continuous sales in the over- the-counter market or in
accordance with the intended method of disposition specified in their request
for such registration. The Company agrees to include in any such registration
statement all information which the Stockholders Representative shall reasonably
request.
Section 2.3. Expenses. The Company will pay all Registration Expenses in
connection with any registration requested pursuant to this Article II.
Section 2.4. Effective Registration Statement. A registration requested
pursuant to this Article II shall not be deemed to have been effected (i) unless
a registration statement with respect thereto has become effective; provided,
that a registration which does not become effective after the Company has filed
a registration statement with respect thereto solely by reason of the refusal to
proceed of the Initiating Holders (other than a refusal to proceed based upon
the advice of counsel relating to a matter with respect to the Company) shall be
deemed to have been effected by the Company at the request of such Initiating
Holders unless the Initiating Holders shall have elected to pay all Registration
Expenses in connection with such registration, (ii) if, after it has become
effective, such registration is withdrawn by the Company (other than at the
request of a majority of the Initiating Holders), interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason prior to the expiration of a 180-day
period following such registration statement effectiveness (or, in the case of a
Shelf Registration, the time period provided in Section 2.8), or (iii) the
conditions to closing specified in any purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied,
other than due solely to some act or omission by such Initiating Holders.
Section 2.5. Selection of Underwriters. If a requested registration
pursuant to this Article II involves an underwritten offering, the underwriter
or underwriters thereof shall be selected by the Company; provided, however,
that the Company shall advise the Stockholder Representative of the proposed
underwriter or underwriters who shall advise the holders of Registrable
Securities of the names of such underwriter or underwriters and such holders
shall have 30 days to submit to the Company in writing any objections to the
proposed underwriter or underwriters.
Section 2.6. Priority in Requested Registrations. If a requested
registration pursuant to this Article 11 involves an underwritten offering, and
the managing underwriter shall advise the Company in writing (with a copy to the
Stockholder Representative) that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company which are not Registrable Securities) exceeds the number which can be
sold in such offering within a price range reasonably acceptable to the Company
and to the Stockholder Representative, the Company
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will include in such registration, to the extent of the number which the Company
is so advised can be sold in such offering, (i) first, Registrable Securities
requested to be included in such registration pro rata among the holders thereof
requesting such registration as provided in Section 2.1 on the basis of the
number of such securities requested to be included in such registration by the
holder or holders of Registrable Securities, and (ii) second, other securities
of the Company included in such registration in any manner and amount selected
by the Company; provided, however, if the proposed price range is not acceptable
to the Stockholder Representative and the holders of Registrable Securities do
not wish to sell any of their securities in the offering, but the Company wishes
to proceed with the offering of the securities of the Company included in such
registration, such registration shall not count as the one-time registration
that holders of Registrable Securities are entitled to under this Article II;
and provided, however, that notwithstanding the allocation provisions of the
first sentence of this Section 2.6, the managing underwriter advises the Company
(with a copy to the Stockholder Representative) that, in its opinion, the number
of securities requested to be included in such registration by the holders of
Registrable Securities is too large in proportion to the number of other
securities to be offered by the Company and the holders of Registrable
Securities consent to a reduction in the number of Registrable Securities to be
included in the offering in order to permit the Company to sell the other
securities offered by the Company, such registration shall not count as the
one-time registration that holders of Registrable Securities are entitled to
under Article II.
Section 2.7. Shelf-Registration. A request by an Initiating Holder pursuant
to Section 2.1 may specify that the intended method of disposition is a "shelf
offering" ("Shelf Offering Request"). In addition to the other obligations of
the Company set forth herein, in connection with a Shelf Offering Request, the
Company will file a "shelf" registration statement on an appropriate form
pursuant to Rule 415 under the Securities Act or any similar rule that may be
adopted by the Commission with respect to all Registrable Securities the Company
is required to effect the registration of under this Article II (a "Shelf
Registration"). The Company shall keep the Shelf Registration continuously
effective for a period of at least 365 days following the date on which the
Shelf Registration is declared effective (or such shorter period that terminates
on the earlier of (i) a date specified by the holders of a majority (by number
of shares) of the Registrable Securities covered by such statement or (ii) the
date on which all Registrable Securities covered by such Shelf Registration have
been sold or withdrawn, but in no case prior to the expiration of the 90-day
period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable); provided, however, that such period shall be
extended by the period of time that the holders of Registrable Securities are
unable to sell Registrable Securities because of a "lock-up' imposed by an
underwriter in connection with any underwritten offering by the Company. The
Company shall supplement or make amendments to the Shelf Registration, if
required by the registration form used by the Company, the instructions thereto,
the Securities Act or the rules and regulations of the Commission, or if
reasonably requested by the Stockholder Representative. The Company will furnish
the Stockholder Representative a copy of all such supplements or amendments at
least one business day prior to filing such supplement or amendment.
ARTICLE III. "PIGGYBACK" REGISTRATION
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Section 3.1. Right to Include Registrable Securities. If the Company at any
time proposes to file a registration statement under the Securities Act covering
any of its securities other than (i) a registration on Form S-8, or any
successor or similar forms, (ii) a shelf registration under Rule 415 under the
Securities Act for the sole purpose of registering shares to be issued in
connection with the acquisition of assets, and (iii) pursuant to Article II,
whether or not for sale for its own account, it will each such time give prompt
written notice to the Stockholder Representative of its intention to do so and
the Stockholder Representative shall provide written notice to the holders of
Registrable Securities and of such proposed filing and of such holders' rights
under this Article III. Upon the written request of any such holder made within
30 days after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder), the Company
will use its best efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to register
by the holders thereof, to the extent requisite to permit the disposition (in
accordance with the Company's intended methods of disposition) of the
Registrable Securities requesting registration, by inclusion of such Registrable
Securities in the registration statement which covers the securities which the
Company proposes to register; provided, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at its election,
give written notice of such determination to the Stockholder Representative and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
piggyback registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
the Initiating Holders of Registrable Securities to request on a one-time basis
that such registration be effected as a registration under Article II and (ii)
in the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Article
III shall relieve the Company of its obligation to effect a registration upon
request of the Initiating Holders under Article II. The Company will pay all
Registration Expenses incurred by holders by Registrable Securities in
connection with each registration of Registrable Securities requested pursuant
to this Article III.
Section 3.2. Priority in Piggy-Back Registrations. If (i) a registration
pursuant to this Article III involves an underwritten offering of the securities
being registered, whether or not for sale for the account of the Company, to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction, and (ii) the managing underwriter of such underwritten offering
shall inform the Company and the Stockholder Representative by letter of its
belief that the distribution of all or a specified number of such Registrable
Securities concurrently with the securities being distributed by such
underwriters would interfere with the successful marketing of the securities
being distributed by such underwriters (such writing to state the basis of such
belief and the approximate number of such Registrable Securities which may be
distributed without such effect), then the Company may, upon written notice to
the Stockholder Representative, reduce pro rata (if and to the extent stated by
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such managing underwriter to be necessary to eliminate such effect) the number
of such Registrable Securities and securities proposed to be sold by any person
other than the Company the registration of which shall have been requested by
each holder of Registrable Securities and each person other than the Company so
that the resultant aggregate number of such Registrable Securities so included
in such registration shall be equal to the number of shares stated in such
managing underwriter's letter.
ARTICLE IV. REGISTRATION PROCEDURES
Section 4. 1. Preparation of Filings. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Articles II or III, the
following shall apply:
(a) Registration Statement. The Company shall promptly prepare and
file (in the case of a registration pursuant to Article II, such filing to
be made within 90 days after the initial request of the Initiating Holders
of Registrable Securities or in any event as soon after such request as
possible) with the Commission the requisite registration statement to
effect such registration (including such audited financial statements as
may be required by the Securities Act or the rules and regulations
promulgated thereunder) and thereafter use its best efforts to cause such
registration statement to become and remain effective; provided, however,
that the Company may withdraw any registration of its securities which are
not Registrable Securities (and, under the circumstances specified in
Section 3.2, its securities which are Registrable Securities) at any time
prior to the effective date of the registration statement relating thereto;
provided further, that before filing such registration statement or any
amendments thereto, the Company will furnish to the Stockholder
Representative and its counsel copies of all such documents proposed to be
filed, which documents will be subject to the review and reasonable
approval of the Stockholder Representative and its counsel.
(b) Amendments. The Company shall prepare and file with the Commission
such amendments, post-effective amendments and supplements to such
registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement for
the following time periods: (i) in the case of a Shelf Registration under
Article 11, the time period specified in Section 2.8; (ii) in the case of a
registration under Article II other than a Shelf Registration, 30 days or
such shorter period as all Registrable Securities have been sold in
accordance with the intended method of disposition specified by the
Initiating Holders thereof; and (iii) in the case of a registration under
Article III, such period of time as the Company determines.
(c) Copies of Documents. The Company shall furnish to the Stockholder
Representative a conformed copy of such registration statement and of each
amendment and supplement thereto (in each case including all exhibits to
such Registration Statement), and
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a of copy of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any
other prospectus filed pursuant to Rule 424 under the Securities Act.
(d) Blue-Sky. The Company will use its best efforts to register or
qualify all Registrable Securities under the securities laws or blue sky
laws of the jurisdictions as the Stockholder Representative shall
reasonably request, to keep such registrations or qualifications in effect
for so long as such registration statement remains in effect, except that
the Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it
would not but for the requirements of this subsection (d) be obligated to
be so qualified, or to consent to general service of process in any such
jurisdiction.
(e) Other Approvals. The Company will use its best efforts to cause
all Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the intended disposition of such Registrable Securities.
(f) Opinions, Comfort Letters. The Company shall furnish to the
Stockholder Representative a signed counterpart, addressed to the
Stockholder Representative, (and the underwriters, if any) of
(i) an opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of
the closing under the underwriting agreement), reasonably satisfactory
in form and substance to the Stockholder Representative, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing
under the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters, and, in the case of the
legal opinion, such other legal matters, as the Stockholder Representative
(or the underwriters, if any) may reasonably request.
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(g) Notice of Events. The Company will notify the Stockholder
Representative at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, upon the Company's discovery
that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
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, and at the request of the Stockholder Representative
promptly prepare and furnish to the Stockholder Representative and each
underwriter, if any, a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they
were made.
(h) Earnings Statement. The Company will otherwise use its best
efforts to comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen months, beginning with the
first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act, and will furnish to the Stockholder
Representative at least five business days prior to the filing thereof a
copy of any amendment or supplement to such registration statement or
prospectus.
(i) Listing. The Company will cause all Registrable Securities covered
by the registration statement to be listed on each securities exchange or
traded or quoted on each market on which the same class of securities
issued by the Company are then listed, traded or quoted.
(j) Transfer Agent. The Company will provide a transfer agent,
registrar and a CUSIP number for all Registrable Securities no later than
the effective date of such Registration Statement.
(k) Access. The Company will make available for inspection by the
Stockholder Representative, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by the Stockholder Representative
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively,
the "Records"), as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by
any such Inspector in connection with such registration statement; provided
that records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall
not
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be disclosed to the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in the
registration statement or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction; provided, further, that any decision not to disclose
information pursuant to clause (i) shall be made after consultation with
counsel for the Company and counsel for the Stockholder Representative; and
the Stockholder Representative agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company at its expense, to
undertake appropriate action and to prevent disclosure of the Records
deemed confidential.
Section 4.2. Data from Holders of Registrable Securities. The Company may
require each seller of Registrable Securities as to which any registration is
being effected to furnish the Company such information regarding such seller and
the distribution of such securities as the Company may from time to time
reasonably request in writing.
Section 4.3. Discontinuance of Use of Prospectus. Each holder of
Registrable Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any written notice from the Company of the occurrence of
any event of the kind described in Section 4.l(g), such holder will forthwith
discontinue such holder's offer of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4.l(g) and, if so directed by the Company, will deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period mentioned in Section
4.l(b) shall be extended by the length of the period from and including the date
when each seller of any Registrable Securities covered by such registration
statement shall have received such notice to the date on which each such seller
has received the copies of the supplemented or amended prospectus contemplated
by Section 4.l(g).
Section 4.4. Underwritten Offerings. If requested by the underwriters for
any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Article II, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in form and substance to the Company and the
underwriters, and to contain such representations and warranties by the Company
and such other terms as are generally prevailing in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in Section 5.1. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to such underwriting agreement
and shall make such representations and warranties to or agreements with the
Company or the underwriters, as they may reasonably request, including
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representations, warranties or agreements regarding such holder, such holder's
Registrable Securities, such holder's intended method of distribution and any
other representation required by law, and indemnities to the effect and to the
extent provided in Section 5.2.
Section 4.5. Holdback Agreements. The Company agrees (i) if so required by
a managing underwriter of an offering of Registrable Securities not to effect
any public sale or distribution of its equity securities or securities
convertible into or exchangeable or exercisable for any of such securities
during the seven days prior to and the 90 days after any underwritten
registration pursuant to Articles II or III has become effective, except as part
of such underwritten registration and except pursuant to registrations on Form
S-8, or any successor or similar forms thereto, and (ii) to cause each holder of
its securities or any securities convertible into or exchangeable or exercisable
for any of such securities, in each case purchased directly from the Company at
any time after the date of this Agreement (other than in a public offering) to
agree not to effect any such public sale or distribution of such securities
during such period except as part of such underwritten registration.
ARTICLE V. INDEMNIFICATION
Section 5.1. Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless in the case of any
registration statement filed pursuant to Articles II and III, the holder of any
Registrable Securities covered by such registration statement, its directors and
officers, each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who controls such
holder or any such underwriter within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which such
holder or any such director or officer or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse such holder and each such director, officer,
underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such holder and, provided ftirther that the Company shall not
be liable to any Person who participates as an
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underwriter, in the offering or sale of Registrable Securities or to any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of such Person's failure to send or give a copy of the fmal prospectus, as
the same may be then supplemented or arnended, within the time required by the
Securities Act to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such holder, any such director, officer, underwriter or controlling
person and shall survive the transfer of such securities by such holder.
Section 5.2. Indemnification by the Sellers. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to Articles II or III, that the Company shall have received an
undertaking satisfactory to it from the prospective seller of Registrable
Securities, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 5.1) the Company, each director of the Company,
each officer of the Company and each other person, if any, who controls the
Company within the meaning of the Securities Act, with respect to any statement
or alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information fumished to the Company through an
instrument duly executed by such seller specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, that such
Sellers' liability under such indemnification shall be limited to the net sales
proceeds actually received by such seller from the sale of the Company's
securities pursuant to such Registration Statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling person
and shall survive the transfer of such securities by such seller.
Section 5.3. Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Sections 5.1 or 5.2, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such action, provided
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under Sections 5.1
or 5.2, except to the extent that the indemnifying party is actually prejudiced
by such failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that the indemnifying party
may wish,
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with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability, or a covenant not to xxx, in respect to such claim or litigation.
No indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
Section 5.4. Other Indemnification. Indemnification similar to that
specified in Sections 5.1 and 5.2 (with appropriate modifications) shall be
given by the Company and each seller of Registrable Securities with respect to
any required registration or other qualification of securities under any federal
or state law or regulation of any governmental authority, other than the
Securities Act.
Section 5.5. Indemnification Payments. The indemnification required by this
Article V shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
ARTICLE VI. DEFINITIONS
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
Common Stock: The Common Stock, $1.00 par value, of the Company.
Company: As defined in the introductory paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time. Reference to a particular section of the
Securities Exchange Act of 1934 shall include a reference to the comparable
section, if any, of any such similar federal statute.
Initiating Holders: Any holder or holders of at least 66-2/3 % of the
Registrable Securities by number of shares at the time outstanding and
initiating a request pursuant to Section 2.1 for the registration of all or part
of such holder's or holders' Registrable Securities.
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Person: A corporation, an association, a partnership, an organization,
business, an individual, a governmental or political subdivision thereof or a
governmental agency.
Registrable Securities: (a) any shares of Common Stock constituting a
portion of the 500,000 shares of Common Stock offered by the Company pursuant to
the Private Placement Memorandum dated April 21, 1997 (the "Memorandum"), (b)
any shares of Common Stock constituting a portion of the 100,000 shares of
Common Stock issued or issuable pursuant to the Warrants offered by the Company
pursuant to the Memorandum, (c) any shares constituting a portion of the shares
of Common Stock issued or issuable to Xxxxxxx Xxxxxx Xxxxx Inc. pursuant to the
warrant to purchase units of the Company expiring April 30, 2000, and (d) any
securities issued or issuable with respect to any Common Stock referred to in
the foregoing subdivision by 'way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) they
shall have been resold to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any similar state law then in force, or (d) they shall have
ceased to be outstanding.
Registration Expenses: All expenses incident to the Company's performance
of or compliance with Article II or III, including, without limitation, all
registration, filing, listing, and NASD fees, all fees and expenses of complying
with securities or blue sky laws, all word processing, duplicating, printing and
engraving expenses, messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, premiums and other costs of
policies of insurance against liabilities arising out of the public offering of
the Registrable Securities being registered and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any.
Securities Act: The Securities Act of 1933, or any similar Federal statute,
and the rules and regulations of the Commission thereunder, all as of the same
shall be in effect at the time. References to a particular section of the
Securities Act of 1933 shall include a reference to the comparable section, if
any, of any such similar Federal statute.
Stockholders: As defined in Section I of this Agreement.
Stockholder Representative: Xxxxxxx Xxxxxx Xxxxx Inc., a Texas corporation.
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ARTICLE VII. RULE 144
Section 7.1. Rule 144. After the earliest of (i) the closing of the sale of
securities of the Company pursuant to a registration statement under the
Securities Act, (ii) the registration by the Company of a class of securities
under Section 12 of the Exchange Act, or (iii) the issuance by the Company of an
offering circular pursuant to Regulation A under the Securities Act, the Company
shall timely file the reports required to be filed by it under the Securities
Act and the Exchange Act (including but not limited to the reports under
Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Securities and Exchange Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder. Upon
the request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
ARTICLE VIII. MISCELLANEOUS
Section 8.1. No Inconsistent Agreements. Without the written consent of the
Stockholder Representative, the Company will not on or after the date of this
Agreement enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the holders of Registrable Securities hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's securities under any agreements previously entered into by the
Company.
Section 8.2. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the parties hereto other than the Company shall also be for the benefit of
and enforceable by any subsequent holder of any Registrable Securities.
Section 8.3. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
Section 8.4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF DELAWARE WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF
LAWS.
Section 8.5. Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
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Section 8.6. Entire Agreement. This Agreement embodies the entire agreement
and understanding between the Company and each other party hereto and supersedes
all prior agreements and understandings relating to the subject matter hereof.
Section 8.7. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
Section 8.8. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of 51 % or more of the shares of Registrable Securities. Each holder of
any Registrable Securities at the time or thereafter outstanding shall be bound
by any consent authorized by this section 5, whether or not such Registrable
Securities shall have been marked to indicate such consent.
Section 8.9. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
Section 8.10. Notices. Except as otherwise provided in this Agreement, all
communications provided for hereunder shall be in writing and sent by
first-class mail, postage prepaid, and (a) if addressed to any holder of
Registrable Securities, at the address that such holder shall have furnished to
the Company in writing, or, until any such other holder so furnishes to the
Company an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company, (b) if
addressed to the Company, American Equity Investment Life Holding Company, 0000
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxx 00000, to the attention of its
President, or (c) if addressed to the Stockholder Representative, Xxxxxxx Xxxxxx
Xxxxx Inc., 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, or at such other
address, or to the attention of such other officer, as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY
By: /s/ X. X. Xxxxx
--------------------------------
X. X. Xxxxx, President
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