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EXHIBIT 4.3
WARRANT REGISTRATION RIGHTS AGREEMENT
THIS WARRANT REGISTRATION RIGHTS AGREEMENT entered into this 5th day of
November, 1996 between American Eagle Group, Inc., a Delaware corporation
("Company"), and American Financial Group, Inc., an Ohio corporation
("Holder").
W I T N E S S E T H:
WHEREAS, pursuant to a Warrant Subscription Agreement and Warrant to
Purchase Common Stock (the "Warrant"), Holder has the right to acquire 800,000
shares of the Company's Common Stock, .01 par value per share (the "Warrant
Shares");
WHEREAS, in connection with the issuance of the Warrant to Holder, the
Company agreed to provide Holder with certain rights to require Company to
register the Warrant and the Warrant Shares (collectively the "Registrable
Securities") with the Securities and Exchange Commission (the "Commission") and
applicable state securities agencies in order to permit the free
transferability and sale of the Registrable Securities by Holder.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. Demand Registration Rights.
1.1 At any time on any three (3) separate occasions, upon the
written request of the Holder, the Company will prepare and file, promptly
after such request and in no case more than Sixty (60) days after receipt of
such notice, and thereafter use its best efforts to cause to become effective a
registration statement ("Registration Statement") on a proper form to be
selected by the Company under and complying with the Securities Act of 1933, as
amended (the "Act"), covering such number of Warrants and Warrant Shares as
shall be specified in the Holder's request; provided, however, that the Company
shall, in no event (including by reason of any assignment of rights by a
Holder), be subject to more than Three (3) demand registrations under this
Agreement and shall not be obligated at any time to register the lesser of (i)
25% of the total number of Warrants or Warrant Shares outstanding or (ii)
Warrant Shares with a market value (based on the market value of the underlying
shares of Common Stock) of less than One Million and 00/100 Dollars
($1,000,000.00) pursuant to any such request.
1.2 Within seven (7) business days of receipt of a written
request for registration under Section 1.1, the Company shall notify all other
persons or entities who beneficially own Registrable Securities at their
respective addresses as shown on the books of the Company of a proposed
registration and such persons or entities shall have the opportunity for a
period of ten (10) business days after receipt of such notice to notify the
Company in writing of their intention to have included in such registration
such number of Registrable Securities as shall be specified in their response.
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1.3 If the Holder so requests, the offering or distribution of
Registrable Securities under this Section shall be pursuant to a firm
underwriting. The managing underwriter shall be a nationally recognized
investment banking firm recommended by the Holder for the Company's reasonable
consideration and approval. The Company will enter into an underwriting
agreement with such managing underwriter containing representations, warranties
and agreements not substantially different from those customarily included by
an issuer in underwriting agreements with respect to secondary distributions;
provided, however, that the Holder shall be entitled to negotiate the
underwriting discounts and commission and other fees of such underwriter.
1.4 No securities to be sold by the Company or any security
holder of the Company shall be included in any Registration Statement filed
pursuant to this Section, unless (i) the offering is pursuant to a firm
underwriting and the managing or principal underwriter for the Holder shall
have consented to the inclusion of such other securities and (ii) all the
Registrable Securities requested to be included by the Holder are so included.
1.5 The Company shall be entitled to postpone the filing of
any Registration Statement otherwise required to be prepared and filed by it
pursuant to this Section if, at the time it receives a request for
registration, counsel for the Company is reasonably of the opinion (which
opinion shall be expressed in writing) that a material pending transaction of
the Company or any of its subsidiaries render the effecting of such
Registration Statement inappropriate at the time; provided, that the duration
of such delay shall not exceed One Hundred Eighty (180) days; provided further,
that the Company shall promptly make such filing as soon as the conditions
which permit it to delay such filing no longer exist; and provided further that
in the event of any such deferral, the Holder shall have the right to withdraw
its request for Registration and such withdrawn request shall not be considered
one of the Holder's permitted requests for registration under Section 1.1.
2. Piggy-Back Registration Rights.
2.1 If the Company or any security holder of the Company (the
"Initiating Securityholder") shall propose to file a Registration Statement for
the purpose of effecting a primary or secondary offering under the Act on Form
X-0, X-0 or S-3 or any equivalent general form for registration of equity
securities under the Act with respect to a public offering of any Company
equity security, the Company shall as promptly as practicable, but in no event
later than Thirty (30) days prior to the proposed filing date, give notice of
such intention to the Holder and shall include in such Registration Statement
all Warrant and Warrant Shares as the Holder shall request within Ten (10) days
of the giving of such notice, subject to the following limitations:
2.1.1 If the offering to be made pursuant to this
Section is initiated by the Company or by a holder pursuant to any other
registration rights agreement with the Company (a "Demanding Holder"), the
inclusion of the Registrable Securities may be conditioned or restricted
if, in the good faith opinion of the managing underwriter (or underwriters)
of the securities to be sold (or, in the absence thereof, of the principal
investment banker acting on behalf of the Company or the Demanding Holder
in effecting such sale) for which such Registration Statement is being
filed, such inclusion will have a material adverse
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impact on the offering of the securities being so registered. If the
number of Registrable Securities is so restricted, then no securities of
other securityholders shall be included in the offering unless all
securities which the Company or the Demanding Holder, as the case may be,
is attempting to sell are included therein, and any reduction required
thereafter is made among the selling securityholders pro rata based on the
number of securities held.
2.2 The Company may, without the consent of the Holder,
withdraw any Registration Statement filed pursuant to this Section 2 and
abandon any such proposed offering in which the Holder requested to
participate. The Holder may withdraw any or all of the Registrable Securities
held by the Holder from a Registration Statement filed or proposed to be filed
pursuant to this Section 2 at any time prior to the effectiveness of such
Registration Statement.
2.3 The notice from the Company to the Holder under Section 2
shall specify whether the securities to be included in such registration for a
sale by the Company are to be sold through underwriters in a firm commitment
offering. If Shares of the Holder are included in such an offering, they shall
be included on the same terms (including the same underwriting discount or
commission) applicable to the securities of the Company.
2.4 Anything in this Agreement to the contrary
notwithstanding, if at the time the Company receives a request pursuant to
Section 1.1, it gives notice to the requesting Holders that it intends within
180 calendar days of the date of such notice to make a public offering of
shares of its Common Stock pursuant to a firm underwriting, such request shall
be deemed to be a request by such Holder to participate in such public offering
by the Company pursuant to Section 2.1 rather than a request pursuant to
Section 1.1 of this Agreement; provided, however, that if such proposed public
offering shall not have occurred within such 180 days, or such additional
period not to exceed 90 days as the Company considers appropriate, such Holders
may renew such Request and the Company shall comply with its obligations under
this Agreement without giving effect to this Section 2.4.
3. Covenants of the Holder.
Any request for registration made by the Holder shall specify the
number of Registrable Securities as to which such request relates, express the
Holder's present intention to offer such Registrable Securities for
distribution and contain an undertaking to provide all such information and
materials and take all such actions and execute all such documents as may be
required in order to permit the Company to comply with all applicable
requirements of the Commission and to obtain acceleration of the effective date
of the Registration Statement.
4. Covenants of the Company.
So long as the Company is under an obligation pursuant to the
provisions of Section 1, the Company shall:
4.1 Prepare and file with the Commission such amendments and
supplements to
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such Registration Statement and the prospectus forming part of such
Registration Statement as may be necessary to keep such Registration Statement
effective for such period as shall be necessary to complete the marketing of
the Registrable Securities included therein, but in no event for longer than
One (1) year after the date the Registrable Securities may first be sold, not
including any period during which the Holder is prohibited from selling any
Registrable Securities;
4.2 Furnish to the Holder such number of copies of a
prospectus, including, without limitation, a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as the
Holder may reasonably request in order to facilitate the public sale or other
disposition of such Registrable Securities;
4.3 Use its best efforts to register or qualify, not later
than the effective date of any Registration Statement filed pursuant to this
Agreement, the Registrable Securities covered by such Registration Statement
under the securities or Blue Sky laws of such jurisdictions within the United
States as the Holder may reasonably request and do any and all other acts or
things which may be necessary or advisable to enable the Holder to consummate
the public sale or other disposition in such jurisdiction of such Registrable
Securities; provided, however, that the Company shall not be required to
qualify as a foreign corporation or to execute a general service of process in
any such jurisdiction;
4.4 Promptly notify the Holder, at any time when a prospectus
relating to the Registrable Securities being distributed is required to be
delivered under the Act, of 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 material fact or omits 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 then existing and, at the request of the
Holder, promptly prepare, file with the Commission and furnish to the Holder a
reasonable number of copies of a supplement to, or an amendment of, such
prospectus as may be necessary, or make any other appropriate filing with the
Commission pursuant to the Securities Exchange Act of 1934, as amended, which
will be incorporated by reference into the Registration Statement so that, as
thereafter delivered to the purchasers of such Registrable 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 light of the circumstances then existing;
4.5 Use its best efforts to furnish, at the request of the
Holder or any underwriter of any distribution of the Registrable Securities, an
opinion of legal counsel to the Company, covering such matters as are typically
covered by opinions of issuer's counsel in underwritten offerings under the
Act;
4.6 Enter into an agreement with the underwriters for such
offering in which the Company shall provide indemnities similar to those
described in Section 6 hereof to the underwriters and in which the Company
shall make the usual representations and warranties made by issuers of equity
securities to underwriters.
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4.7 Use its best efforts to cause all of the Warrants and
Warrant Shares as to which the Holder shall have requested registration to be
listed on any recognized securities exchange, including, without limitation,
the National Association of Securities Dealers Automated Quotation System, on
which the Common Stock is then listed and to maintain the currency and
effectiveness of any such listings.
5. Costs and Expenses.
Except for expenses referred to in the following sentence, with respect
to the first two registrations pursuant to Section 1 and any registrations
pursuant to Section 2, the Company shall bear the entire cost and expense of
any such registration, including, without limitation, all registration and
filing fees, printing expenses, the fees and expenses of the Company's counsel
and its independent accountants and all other out-of-pocket expenses incident
to the preparation, printing and filing under the Act of the Registration
Statements and all amendments and supplements thereto, the cost of furnishing
copies of each preliminary prospectus, each final prospectus and each amendment
or supplement thereto to underwriters, brokers and dealers and other purchasers
of the securities so registered, and the costs and expenses incurred in
connection with the qualification of the securities so registered under "blue
sky" or other state securities laws. Notwithstanding the foregoing, the
Company shall not be liable or responsible for the fees and expenses of counsel
and accountants of the Holder, all underwriting discounts and commissions
attributable to Registrable Securities registered at the request of the Holder,
and in any registration made pursuant to Section 2, all filing fees
attributable to Registrable Securities registered at the request of the Holder.
All such fees and expenses not paid by the Company shall be paid by the Holder
or, if appropriate, prorated among all selling securityholders.
6. Indemnification.
6.1 Indemnity to the Holder. The Company will indemnify the
Holder, its officers, directors and each underwriter of Registrable Securities
as well as any person who controls the Holder or such underwriters against all
claims, losses, damages, liabilities and expenses resulting from any untrue
statement or alleged untrue statement of a material fact contained in a
prospectus or in any related Registration Statement, notification or similar
filing under the securities laws of any jurisdiction or from 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, except insofar as
the same may have been based upon information furnished in writing to the
Company by the Holder or such underwriter expressly for use therein and used in
accordance with such writing.
6.2 Indemnity to the Company. The Holder, by requesting any
such registration, agrees to furnish to the Company such information concerning
it as may be requested by the Company and which is necessary or required by
then applicable securities laws and the rules and regulations thereunder in
connection with any Registration or qualification of the Registrable Securities
and to indemnify the Company, its officers, directors and any person who
controls the Company, against all claims, losses, damages, liabilities and
expenses resulting from the utilization of such information furnished in
writing to the Company expressly for use therein and used in
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accordance with such writing.
6.3 Indemnification Procedures. If any action is brought or
any claim is made against any party entitled to be indemnified pursuant to this
Section 6 in respect of which indemnity may be sought against the indemnitor
pursuant to Section 6 hereof, such party shall promptly notify the indemnitor
in writing of the institution of such action or the making of such claim and
the indemnitor shall assume the defense of such action or claim, including the
employment of counsel and payment of expenses. Such indemnified party shall
have the right to employ its or their own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of such party unless
the employment of such counsel shall have been authorized in writing by the
indemnitor in connection with the defense of such action or claim or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to
those available to the indemnitor (in which case the indemnitor shall not have
the right to direct any different or additional defense of such action or claim
on behalf of the indemnified party or parties), in any of which events such
fees and expenses of not more than one additional counsel for the indemnified
parties shall be borne by the indemnitor. Except as expressly provided above,
if the indemnitor shall not previously have assumed the defense of any such
action or claim, at such time as the indemnitor does assume the defense of such
action or claim, the indemnitor shall thereafter be liable to any person
indemnified pursuant to this Agreement for any legal or other expenses
subsequently incurred by such person in investigating, preparing or defending
against such action or claim. Anything in this paragraph to the contrary
notwithstanding, the indemnitor shall not be liable for any settlement of any
such claim or action effected without its written consent.
7. Miscellaneous.
7.1 Notices.
Notices given under this Agreement shall
be deemed given when received and the addresses for the parties set forth below
and may be delivered by telex or other telecommunications device producing a
document setting forth such notice.
If to the Company: American Eagle Group, Inc.
00000 X. Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Facsimile No.: (000) 000-0000
If to the Holder: American Financial Group, Inc.
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile No: (000) 000-0000
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7.2 Binding Agreement. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
7.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware.
7.4 Assignability. The rights and obligations of the Holder
hereunder may be assigned by it to any corporation or corporations, or other
entity or entities controlled by it or controlling it or to which it may
transfer any Registrable Securities. Upon such transfer, each transferee shall
be deemed for all purposes of this Agreement to be the "Holder."
7.5 Succeeding Securities. If the Registrable Securities of
the Company covered by this Agreement are converted into any other security of
the Company or any other corporation, the terms of this Agreement shall apply
with full force and effect to any such other security and the obligations of
the Company to effect registration shall include such other filings,
qualifications, notices and similar acts as may be necessary to enable the
Holder to realize the benefits of registration provided by this Agreement.
7.6 Counterparts. This Agreement may be executed in Two (2)
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
7.7 Other Registration Rights. Nothing in this Agreement
shall prohibit the Company from granting registration rights on its securities
in the future.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
AMERICAN FINANCIAL GROUP, INC.
BY: Xxxx X. Xxxxxxx
ITS: Co-President
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AMERICAN EAGLE GROUP, INC.
BY: M. Xxxxxx Xxxxxxx
ITS: Chairman of the Board, CEO
and President
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