Exhibit 4.20


 


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 l44A.


 


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.: [               ] 


Attention: [                                  ]


 


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.


 


(1)                                  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
  and

  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK SECURITES
  INC.

  
	
   

  	
  RAYMOND JAMES &
  ASSOCIATE, INC.

  
	
   

  	
  ADVEST, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DEUTSCHE BANK
  SECURITIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael L. Albanese

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael L. Albanese

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald Sung

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Donald Sung

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


[Signature Page to
Rigistration Rights Agreement]