Exhibit 10.1
STOCK SALE/PURCHASE AGREEMENT
AGREEMENT made this 31st day of March, 2005, by and between AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY, an Iowa corporation with offices at
0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxx Xxxxxx, XX 00000 (hereinafter
referred to as "Buyer"); and X.X. XXXXX, an individual residing at 0000 Xxxx xx
Xxxxxx Xxxxx, Xxxxxxxx Xxx, XX 00000 (hereinafter referred to as "Seller").
Buyer and Seller agree and acknowledge that the effective date of the
transaction evidenced by this Agreement shall be January 1, 2005.
The parties have reached an understanding with respect to the sale and
purchase of One- Hundred Percent (100%) of the outstanding shares of common
stock of AMERICAN EQUITY INVESTMENT SERVICE COMPANY, an Iowa corporation (the
"Service Company").
IT IS HEREBY AGREED, AS FOLLOWS:
1. Sale of Corporate Shares.
1.1 Sale/Purchase of Shares. Seller shall sell to Buyer and
Buyer shall purchase from Seller 1,000 shares of the Common Stock of
the Service Company (the "Shares"). Seller warrants and represents
that the Shares represent 100% of the issued and outstanding voting
capital stock of the Service Company. Buyer agrees to pay to Seller
the Purchase Price, defined in Section 1.2 below, payable in
accordance with Section 2.2 below.
1.2 Purchase Price. The Purchase Price shall be $2,500,000
payable in cash by wire transfer on March 31, 2005. The parties agree
and acknowledge that the value of the cash and cash equivalents of the
Service Company at January 1, 2005 were approximately $3,900,000.
2. Closing/Payment of Shares Purchase Price.
2.1 Closing Date/Location. The closing of the sale and
purchase ("Closing") shall take place at the offices of the Buyer,
0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxx Xxxxxx, XX 00000, at 10:00
o'clock A.M. C.S.T. on March 31st, 2005 (the "Closing Date").
2.2 Delivery of Shares. At the Closing, Seller shall deliver
to Buyer, free and clear of all liens, encumbrances, or charges
whatsoever, the Certificate for the Shares in negotiable form.
3. Representations and Warranties of Seller. Seller represents
and warrants, as follows:
3.1 No Prohibition. There is no prohibition either in
applicable law or in any agreement to which Seller is a party which in
any way restricts or prevents Seller's execution and performance of
this Agreement or the consummation of the transaction contemplated in
this Agreement.
3.2 No Impediment. There are no actions, suits, proceedings
or investigations pending, or, to Seller's knowledge, threatened,
against Seller whether at law, in equity or otherwise, or before any
court or governmental agency, which would have a material adverse
effect on Seller's ability to execute, deliver and perform this
Agreement if determined adversely and, to Seller's knowledge, there
are no circumstances which would give rise to any such action, suit,
proceeding or investigation.
3.3 Share Ownership. Seller represents and warrants that it
is the owner, free and clear of any encumbrances whatsoever, of the
Shares, and that it owns all of the issued and outstanding shares of
capital stock of the Company. Seller has full right and authority to
transfer the Shares to Buyer.
3.4 Litigation. To Seller's knowledge, there is no litigation
or judicial, administrative or arbitration proceeding pending or
threatened against or relating to the Service Company, its properties
or business, nor does Seller know or have reasonable grounds to know
of any basis for any such action, or of any governmental investigation
in connection with the Service Company.
4. Representations and Warranties of Buyer. Buyer represents and
warrants as follows:
4.1 Organization of Buyer. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Iowa, and has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations under this
Agreement. Except as waived or to be waived by Buyer's lenders, there
is no prohibition either in applicable law or in any agreement to
which Buyer is a party which in any way restricts or prevents Buyer's
execution and performance of this Agreement or the consummation of the
transaction contemplated in this Agreement.
4.2 No Impediment. There are no actions, suits, proceedings
or investigations pending, or threatened, against Buyer whether at
law, in equity or otherwise, or before any court or governmental
agency, which would have a material adverse effect on the Buyer's
ability to execute, deliver and perform this Agreement if determined
adversely and, there are no circumstances which would give rise to any
such action, suit, proceeding or investigation.
5. Representations and Warranties of the Service Company. Seller
and the Service Company warrant and represent, jointly and severally, as
follows:
5.1 Organization of Service Company. The Service Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Iowa, and has the requisite corporate
and authority to enter into this Agreement and to perform its
obligations under this Agreement. The Service Company has authorized
capital stock consisting of 10,000 shares of common stock, of which
1,000 shares are presently issued and outstanding.
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5.2 No Impediment. There are no actions, suits, proceedings
or investigations pending, or, to the Service Company's knowledge,
threatened, against the Service Company whether at law, in equity or
otherwise, or before any court or governmental agency, which would
have a material adverse effect on the Service Company's ability to
execute, deliver and perform this Agreement if determined adversely,
or to conduct its business as presently conducted, and, to the Service
Company's knowledge, there are no circumstances which would give rise
to any such action, suit, proceeding or investigation.
5.3 Litigation. To the Service Company's knowledge, there is
no litigation or proceeding pending or, to the Service Company's
knowledge, threatened against or relating to the Service Company, its
properties or business, nor does the Service Company know or have
reasonable grounds to know of any basis for any such action, or of any
governmental investigation relative to its properties or business.
5.4 Financial Status. The Service Company has no liabilities,
obligations or commitments of any kind, other than those liabilities
fully disclosed in its books and records which have been provided to
Buyer for its review. The Service Company has no known contingent
liabilities. The assets of Service Company are subject to no liens,
encumbrances or charges of any kind except as fully disclosed in its
books and records.
5.5 No Violation; Consents and Approvals.. The execution and
delivery of this Agreement by the Service Company will not conflict
with or result in (i) any violation of any provision of the
organizational documents of the Service Company, (ii) conflict with,
result in a violation or breach of, or constitute a default under, or
give rise to any right of termination, revocation, cancellation or
acceleration under, any loan, credit agreement, lease, contract or
agreement, written or unwritten to which the Service Company is a
party, except for any default waived prior to Closing. No consent,
approval, license, permit, order, authorization or, registration or
filing with any governmental entity is required to be obtained or made
by the Service Company for the execution, delivery or performance of
this Agreement.
5.6 Tax Representations. (a) All Tax Returns required to be
filed with respect to the Service Company have been duly and timely
filed and all such Tax Returns are true, correct and complete in all
material respects. The Service Company has duly and timely paid all
Taxes that are due with respect to the periods covered by such Tax
Returns and has made all required estimated payments of Taxes. With
respect to the 2004 Tax Returns: (i) requests for extensions of the due
date for the filing of the 2004 Tax Returns were timely filed; (ii) all
required estimates were paid; (iii) and Seller will file the 2004 Tax
Returns on or before the extended due date. The Service Company has not
been and is not , in violation (or with notice or lapse of time or
both, would be in violation) of any applicable law relating to the
payment or withholding of Taxes. No claim has ever been made by an
authority in a jurisdiction where the Service Company does not file Tax
Returns that the Service Company is or may be subject to taxation by
that jurisdiction. The Service Company is not a party to any Tax
allocation or Tax sharing agreement or arrangement, or any similar
contract. No audit or other proceeding by any governmental or
regulatory authority is impending or has been threatened in writing
with respect to any Taxes due from the Service company or any
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Tax Return filed or required to be filed by the Service Company. No
assessment or deficiency for any Tax has been proposed or threatened
writing against the Service Company.
(b) At all times since the formation of the Service
Company, until January 1, 2004, the Service Company was a validly
electing S corporation within the meaning of Section 1361 of the
Internal Revenue Code of 1986, as amended. Effective January 1, 2004,
the S election of the Service Company was revoked.
(c) "Tax" or "Taxes" means any and all taxes, however
denominated, imposed by law, contractual agreement or otherwise, which
taxes shall include, but not be limited to, all net income, gross
income, gross receipts, franchise, excise, occupation, estimated,
alternative minimum, add-on minimum, gains, net worth, paid up capital,
sales, use, ad valorem, value added, stamp, natural resources,
environmental, real or personal property, custom, duty, transfer,
recording, escheat, documentation, employment, workers compensation,
unemployment, disability, payroll, license, service, service use,
employee or other withholding, or other tax of any kind whatsoever,
including any interest, penalties, charges or additions to Tax that may
become payable in respect thereof, and any liability in respect of such
amounts arising as a result of being a member of any affiliated,
consolidated, combined, unitary or similar group, as a successor to
another person or by contract.
(d) "Tax Returns" means returns, declarations, reports or
other documents (including any related or supporting schedules,
statements or information, and any amendment to the foregoing), filed
or required to be filed in connection with the determination,
assessment or collection of any Tax or the administration of any law
regulation or administrative requirement relating to any Taxes. The
term "Tax Returns" as used herein shall include all Tax Returns to be
filed for the year ending December 31, 2004, which are referred to
separately above as the "2004 Tax Returns".
5.7 Compliance With Laws. The Service Company has in effect
all certificates, permits, licenses, approvals, registrations and
other similar authorizations from any governmental entity required for
the conduct of its business as currently conducted. The Service
Company is in compliance with all existing laws, regulations, permits,
rules, orders, statutes and decrees applicable to its business.
6. Survival of Representations and Warranties. Notwithstanding
(a) any investigation conducted by Buyer or Seller, as appropriate, after the
Closing, or (b) any knowledge or notice of any fact or circumstance that Buyer
or Seller, as appropriate, may have as the result of such investigation, Buyer
and Seller shall nevertheless be entitled to rely upon the representations,
warranties and covenants in this Agreement and the other documents contemplated
hereby. Each of the representations, warranties and covenants contained in this
Agreement, made in any document delivered hereunder or otherwise made in
connection with the Closing hereunder shall survive the Closing for a period of
eighteen (18) months from the Closing Date; provided, however, that the
representations and warranties contained in Section 5.6 shall survive until 90
days after the expiration of the applicable statutes of limitation.
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7. Seller Indemnification. Seller shall indemnify and hold Buyer
free and harmless from and against any losses, damages, costs or expenses
(including attorneys fees) incurred by Buyer as a result of any inaccuracy in
or breach of any representation or warranty of Seller or the Service Company
contained in this Agreement which is the subject of any claim brought by Buyer
during the time period during which the representation and warranty survives
the Closing Date.
8. Buyer Indemnification. Buyer shall indemnify and hold Seller
free and harmless from and against any losses, damages, costs or expenses
(including attorneys fees) incurred by Seller as a result of any inaccuracy in
or breach of any representation or warranty of Buyer contained in this
Agreement which is the subject of any claim brought by Buyer during the time
period during which the representation and warranty survives the Closing Date.
9. Benefit. This Agreement is personal to Seller and Buyer, and
no party hereto shall assign any of such party's respective rights or delegate
any of such party's respective obligations hereunder without the prior written
consent of the other parties, which consent may be withheld for any reason.
10. Construction. This Agreement is being delivered and is
intended to be performed in the State of Iowa and shall be construed and
enforced in accordance with the laws of the State of Iowa
11. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed first class, postage prepaid, if to Buyer to
Xx. Xxxxx X. Xxxxxxxxxx, Senior Vice President, 0000 Xxxxxxx Xxxxxxx, Xxxxx
000, Xxxx Xxx Xxxxxx, XX 00000 or if to Seller to X.X. Xxxxx, 0000 Xxxx xx
Xxxxxx Xxxxx, Xxxxxxxx Xxx, XX 00000, or at such other address as Buyer or
Seller may have furnished to the other party in writing.
12. Expenses. Each party hereto shall pay such party's own
expenses in connection with the transaction contemplated hereby.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Further Assurances. Seller and Buyer agree to take such
additional action and execute such additional documents as the other party may
reasonably request in order to effectuate the intent and purpose of this
Agreement.
15. Receipt. Each of the parties to this Agreement acknowledge
receipt of a fully executed copy of this Agreement.
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16. Entire Agreement. This Agreement contains the entire
understanding and agreement of the parties with respect to the subject matter
hereof and supersedes any prior representations, understandings, or agreements.
IN WITNESS WHEREOF, the parties have duly executed this Agreement the
date and year first above written.
AMERICAN EQUITY INVESTMENT X.X. XXXXX
LIFE HOLDING COMPANY
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
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Name and Title: Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Executive Vice President
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Assignment Separate from Certificate
FOR VALUE RECEIVED, X.X. XXXXX hereby sells, assigns and transfers unto
American Equity Investment Life Holding Company, an Iowa corporation, One
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Thousand (1,000) Shares of the Common Capital Stock of American Equity
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Investment Service Company (the "Service Company") standing in his names on the
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books of said Service Company, represented by Certificate Nos. 01 herewith and
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do hereby irrevocably constitute and appoint
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attorney to transfer the said stock on the books of the within named Service
Company with full power of substitution in the premises.
Effective Date: January 1, 2005
X.X. XXXXX
By:
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In Presence of
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