Exhibit 4.3


 


REGISTRATION RIGHTS AGREEMENT


 


Dated as of December 6, 2004


 


by and among


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY,


 


DEUTSCHE BANK SECURITIES INC.,


 


RAYMOND JAMES & ASSOCIATES, INC., and



ADVEST, INC.



5.25% Contingent Convertible Senior Notes Due 2024


 





















 


TABLE OF
CONTENTS


 


	
  1.

  	
   

  	
  Definitions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Shelf Registration.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Liquidated Damages.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Registration Procedures.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Registration Expenses.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Indemnification.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Rules 144 and 144A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Underwritten Registrations.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Miscellaneous.

  	
   

  



 


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REGISTRATION
RIGHTS AGREEMENT


 


This Registration Rights Agreement (this “Agreement”)
is dated as of December 6, 2004, by and among American Equity Investment Life
Holding Company, an Iowa corporation (the “Company”), and Deutsche Bank
Securities Inc., Raymond James & Associates, Inc. and Advest, Inc. (the “Initial
Purchasers”).


 


This Agreement is entered into in connection with
the Purchase Agreement dated December 1, 2004 (the “Purchase Agreement”)
between the Company and the Initial Purchasers, which provides for the sale by
the Company to the Initial Purchasers of $175,000,000 aggregate principal
amount of the Company’s 5.25% Contingent Convertible Senior Notes Due 2024 (the
“Firm Notes”), plus up to an additional $75,000,000 aggregate principal
amount of the same which Deutsche Bank Securities Inc. may subsequently elect
to purchase pursuant to the terms of the Purchase Agreement (the “Option
Notes” and, together with the Firm Notes, 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 the date
hereof (the “Indenture”), by and between the Company and U.S. Bank
National Association, as Trustee.


 


In order to induce the Initial Purchasers 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 Purchasers
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 Purchasers’ obligation to purchase
the Firm 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 6, 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.


 


“Firm Notes”: 
See the second introductory paragraph hereto.


 


“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 Purchasers”:  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.


 


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“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.


 


“Option Notes”:  See the second introductory paragraph hereto.


 


“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.


 


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“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.


 


“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.


 


(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


 


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Securities Act until the date (A) that is two years after the Closing
Date, or if later, the date on which the Option Notes were issued, (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 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


 


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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
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.


 


(a)                                  The
Company and the Initial Purchasers 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


 


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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;


 


(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


 


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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 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.


 


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


 


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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 Purchasers 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 Purchasers.


 


(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


 


9





















 


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
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


 


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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 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


 


11





















 


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.


 


(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


 


12





















 


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
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


 


13





















 


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 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
Purchasers), (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


 


14





















 


copy of 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) 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


 


15





















 


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 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


 


16





















 


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
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 Purchasers 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


 


17





















 


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 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 Purchasers 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


 


18





















 


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 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 Purchasers:


 


c/o Deutsche Bank Securities Inc.

60 Wall Street

New York, New York 10005

Facsimile No.: (212) 797-8974

Attention: Equity Capital Markets 

with a copy to the General Counsel

Facsimile No.: (212) 797-4564


 


Raymond James & Associates, Inc.

880 Carillon Parkway

St. Petersburg, FL 33716


Facsimile No.: [            ]

Attention: [                  ]


 


Advest, Inc.

90 State House Square

Hartford, CT 06103

Facsimile No.: (860) 509-5008

Attention: Rob Keane


 


19





















 


with a copy to:


 


Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Facsimile No.: (212) 450-4745

Attention: Richard A. Drucker


 


(3)                                  if to the Company:


 


American Equity Investment Life Holding Company

5000 Westown Parkway


Suite 440

West Des Moines, Iowa 50266

Facsimile No.: (515) 221-9947

Attention: Wendy L. Carlson


 


with a copy to:


 


Skadden, Arps, Slate, Meagher & Flom LLP

333 West Wacker Drive

Chicago, Illinois 60606

Facsimile No.: (312) 407-0411

Attention: William R. Kunkel


 


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.


 


20





















 


(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.


 


(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 Purchasers 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/ Wendy L. Carlson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Wendy L. Carlson

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK SECURITIES INC.

  
	
   

  	
  RAYMOND JAMES & ASSOCIATES, INC.

  
	
   

  	
  ADVEST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: DEUTSCHE BANK SECURITIES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michael Albanese

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael L. Albanese

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Donald Sung

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Donald Sung

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


 


[Signature Page to Registration
Rights Agreement]