EXHIBIT 1
AGREEMENT OF SALE
THIS AGREEMENT OF SALE is made and entered into this 22 day of
October, 1997, by and between R. Xxx Xxx, M.D. ("Seller") and AmerUs Group
Co., an Iowa corporation ("Buyer").
WITNESSETH
WHEREAS, Seller desires to sell and Buyer desires to purchase all
of Seller's rights, title and interest in 63,675 shares of common stock,
no par value ("Common Stock") of AmVestors Financial Corporation, a
Kansas corporation ("AmVestors") held by Seller (individually a "Share,"
collectively the "Shares").
NOW, THEREFORE, in consideration of the above premises, the
mutual covenants and agreements stated herein, the Purchase Price (as
defined below) paid by Buyer to Seller, and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. SALE OF SHARESSeller does hereby irrevocably sell, assign,
transfer and deliver unto Buyer, its successors and assigns, all of
Seller's right, title, and interest in and to the Shares.
2. PURCHASE PRICE. Buyer hereby agrees to pay to Seller this day,
in immediately available funds, an amount equal to $20 per Share
($1,273,500.00 in the aggregate for all the Shares). In addition:
(a) Upon timely consummation of the merger pursuant to
that certain Amended and Restated Agreement and Plan
of Merger dated as of September 19, 1997, amended and
restated on October 8, 1997 (the "Merger Agreement"),
by and among AmVestors, AmerUs Life Holdings, Inc.,
an Iowa corporation ("AmerUs") and AFC Corp., a
Kansas corporation and wholly owned subsidiary of
AmerUs, Buyer agrees to pay Seller additional
consideration equal to the positive amount, if any,
of (i) the product of (x) the Merger Consideration
(as defined in the Merger Agreement) multiplied by
the Average Parent Share Price (as defined in the
Merger Agreement) multiplied by (y) 63,675; minus
(ii) $1,273,500; provided, however, that any such
payment shall be subject to a maximum of $0.625
multiplied by 63,675 (the "Maximum Amount").
(b) In the event the Merger Agreement is terminated
pursuant to Article IX of the Merger Agreement, Buyer
agrees to pay Seller an amount equal to the positive
amount, if any, of (i) the product of (x) 63,675
multiplied by (y) the closing price per share of
AmVestors Common Stock as reported on the New York
Stock Exchange on the fifth trading day following the
date of the first public announcement by Buyer of the
termination; minus (ii) $1,273,500; provided,
however, that any such payment shall be subject to a
maximum of $0.625 multiplied by 63,675 (the "Maximum
Amount").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller
does hereby represent, warrant and covenant to Buyer as follows:
(a) Seller is the lawful owner of the Shares and has and
is hereby transferring to Buyer good and marketable title to the Shares,
free and clear of any and all encumbrances, liens, security interests,
pledges, and charges of any kind whatsoever.
(b) Seller has the power to enter into this Agreement of
Sale and to sell, assign and transfer all of his right, title and
interest in the Shares.
(c) Seller covenants and agrees that in the event the
Shares cannot be transferred or assigned without the consent of or notice
to a third party, such third party consent has previously been obtained,
or notice has been previously given (as the case may be), by Seller.
(d) Neither the execution and delivery of this Agreement
of Sale nor compliance with the terms hereof by Seller will breach any
governmental law, statute or regulation, or conflict with or result in
the breach of any of the terms, conditions, or provisions of any
agreement or instrument to which the Seller is a party or by which it is
or may be bound or result in the creation or imposition of any
encumbrance, lien, security interest, pledge or charge.
(e) This Agreement of Sale is enforceable against Seller
in accordance with its terms.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER. Buyer does
hereby represent and warrant to Seller as follows:
(a) Neither the execution and delivery of this Agreement
of Sale nor compliance with the terms hereof by the Buyer will violate
the articles of incorporation or bylaws of Buyer, will breach any
governmental statute or regulation, or conflict with or result in the
breach of any of the terms, conditions or provisions of any agreement or
instrument to which Buyer is a party or by which it is or may be bound or
result in the creation or imposition of any encumbrance, lien, security
interest, pledge or charge.
(b) Buyer has the corporate power and authority to enter
into this Agreement of Sale and this Agreement of Sale is enforceable
against Buyer in accordance with its terms.
(c) Buyer covenants and agrees that in the event the
Shares cannot be purchased without the consent of or notice to a third
party, such third party consent has previously been obtained, or notice
has been previously given (as the case may be), by Buyer.
(d) Buyer is acquiring the Shares for its own account for
investment purposes, and not with a view to distribution thereof within
the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(e) Buyer is an "Accredited Investor" as defined in the
Securities Act.
5. GENERAL.
(a) This Agreement of Sale cancels and supersedes all
previous agreements relating to the subject matter of this Agreement of
Sale, written or oral, between the parties hereto and contains the entire
understanding of the parties hereto and shall not be amended, modified or
supplemented in any manner whatsoever except in a writing signed by each
of the parties hereto.
(b) This Agreement of Sale shall be binding upon, and
inure to the benefit of, and be enforceable by, the parties hereto and
their respective successors and permitted assigns.
(c) This Agreement of Sale may be executed in any number
or counterparts, each of which shall be deemed to be an original and all
of which shall constitute one agreement which is binding upon all the
parties hereto, notwithstanding that all parties are not signatories to
the same counterpart.
(d) This Agreement of Sale and all rights and obligations
of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Kansas
applicable to agreements made and to be performed entirely within such
State, including all matters of enforcement, validity and performance.
(e) Both parties acknowledge and agree that Seller may be
deemed an "Affiliate" of AmVestors under federal and state securities
laws, that therefore the Shares may be deemed restricted under Rule 144
of the Securities Act and that the certificates for such Shares may bear
an appropriate restrictive legend.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement of Sale to be executed as of the date and year first set forth
above.
R. Xxx Xxx, M.D.
___________________________
/s/ R. Xxx Xxx
AmerUs Group Co.
____________________________
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
______________________________
Title: General Counsel
_____________________________