RESTATED AND AMENDED
STOCK OPTION AND WARRANT AGREEMENT
THIS RESTATED AND AMENDED STOCK OPTION AND WARRANT AGREEMENT is entered
into this 30th day of April, 1997, by and between American Equity Investment
Life Holding Company, a Delaware corporation ("Company"), ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and ▇. ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the parties entered into that certain Stock Option Agreement,
dated as of January 3, 1996, pursuant to which Noble, as the founding
shareholder of the Company, received an option to maintain an ownership interest
of up to 51% of the issued and outstanding shares of Common Stock of the
Company, par value $1 per share (the "Common Stock");
WHEREAS, the parties have agreed to restate and amend the Stock Option
Agreement to specify the number of shares which Noble may acquire upon exercise
of the option, and, in consideration of such limitation, to ▇▇▇▇▇ ▇▇▇▇▇ a
warrant to acquire up to 80,000 shares upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, THE PARTIES AGREE, as follows:
1. Grant of Option. The Company hereby grants Noble an option
("Option") to acquire 320,000 shares (the "Option Shares") of the Common Stock
of the Company upon the terms and conditions hereinafter set forth. This Option
may be exercised in whole or in part at any time or from time to time by Noble.
This Option is granted for a ten-year term and may not be exercised after the
expiration of ten years from the date of this Agreement.
2. Exercise Price. The exercise price payable by Noble for each share
of Common Stock as to which this Option may be exercised is as follows:
(i) the exercise price for 200,000 of the Option Shares shall be
$10 per share, subject to adjustment under Section 4 below;
(ii) the exercise price for 120,000 of the Option Shares shall be
the fair value per share of the Common Stock on the date of
exercise as determined by the Company's Board of Directors on
the basis of the prices of shares of Stock sold to
unaffiliated third parties within the 180-day period prior to
the date or dates of exercise of the Option, as applicable;
3. Method of Exercise. This Option shall be exercisable by written
notice given by Noble to Company which shall:
(i) State the number of shares in respect of which the Option
is being exercised;
(ii) Set forth any representations and agreements as to
Noble's investment intent with respect to such shares of Common Stock
as may be satisfactory to Company's counsel; and
(iii) Bear Noble's signature.
Payment of the purchase price of any shares with respect to which the
Option is being exercised shall be by certified or bank cashier's check
delivered with the notice of exercise.
4. Adjustments.
(i) Whenever a stock split, stock dividend or other similar
change in capitalization of the Company occurs, the number of shares
that can thereafter be purchased and the Option price per share under
this Option that has been granted and not exercised shall be
appropriately adjusted to maintain the proportionate interest in the
Common Stock which Noble may acquire under the Option at an aggregate
price equivalent to that which would have been payable prior to the
applicable change in capitalization.
(ii) In the event of the dissolution or liquidation of the
Company, any Option granted hereunder shall terminate as of a date to
be fixed by the Company's Board of Directors, provided that not less
than 30 days' written notice of the date so fixed shall be given to
Noble and Noble shall have the right during such period to exercise
Noble's Option as to all or any part of the shares covered thereby,
including shares as to which such Option would not otherwise be
exercisable by reason of an insufficient lapse of time.
(iii) Adjustments and determinations under this paragraph 4
shall be made by the Company's Board of Directors, whose decisions as
to what adjustments or determinations shall be made, and the extent
thereof, shall be final, binding and conclusive.
5. Warrant Agreement. Concurrently with the execution of this
Agreement, the parties shall enter into a Warrant Agreement substantially in the
form of Exhibit A hereto, pursuant to which Noble may acquire up to 80,000
shares of Common Stock at an exercise price of $10 per share, subject to
adjustment as provided in the Warrant Agreement.
6. Substitution for Stock Option Agreement. This Restated and Amended
Stock Option and Warrant Agreement shall supersede and replace the Stock Option
Agreement in its entirety.
7. Notices. Each notice relating to this Agreement shall be in writing
and delivered in person or by certified mail to the proper address, and shall be
deemed to have been given on
the date it is received. Each notice to the Company shall be addressed to it at
its principal office, attention of the Secretary. Each notice to Noble shall be
addressed to Noble or such other person or persons at Noble's address set forth
in the heading of this Agreement. Either party hereof may designate a new
address by written notice to that effect.
7. Benefits of Agreement. This Agreement shall inure to the benefit of
and be binding upon each successor of the Company. All obligations imposed upon
Noble and all rights granted to the Company under this Agreement shall be
binding upon Noble's heirs, legal representatives and successors. This Agreement
shall be the sole and exclusive source of any and all rights which Noble,
Noble's heirs, legal representatives, or successors may have hereunder or any
options or Stock granted or issued hereunder whether to Noble or to any other
person.
IN WITNESS WHEREOF, the Company and Noble have caused this Agreement to
be executed effective as of the day, month and year first above written.
AMERICAN EQUITY INVESTMENT
LIFE HOLDING COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇
-------------------------
▇.▇. ▇▇▇▇▇, President
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Secretary
/s/ ▇.▇. ▇▇▇▇▇
-----------------------
▇.▇. ▇▇▇▇▇, Optionee
Exhibit 10.3
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE (COLLECTIVELY, THE "ACTS"). NEITHER
THIS WARRANT NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
WITH RESPECT HERETO UNDER ALL OF THE APPLICABLE ACTS, OR AN OPINION OF COUNSEL
SATISFACTORY TO AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY TO THE EFFECT
THAT SUCH REGISTRATIONS ARE NOT REQUIRED.
WARRANT
to Purchase Common Stock of
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY
Expiring on April 30, 2000
THIS IS TO CERTIFY THAT, for value received, ▇. ▇. ▇▇▇▇▇, or permitted
assigns, is entitled to purchase from AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY, a Delaware corporation (the "Company"), at the place where the Warrant
Office designated pursuant to Section 2.1 is located, at a purchase price of
$10.00 per share (as adjusted pursuant to the terms of this Warrant, the
"Exercise Price"), and 80,000 shares of duly authorized, validly issued, fully
paid and nonassessable shares of Common Stock, $1.00 par value, of the Company
(the "Common Stock"), and is entitled also to exercise the other appurtenant
rights, powers and privileges hereinafter set forth. The number of shares of the
Common Stock purchasable hereunder and the Exercise Price are subject to
adjustment in accordance with Article III hereof. This Warrant shall expire at
5:00 p.m., E.S.T., on April 30, 2000.
Certain Terms used in this Warrant are defined in Article IV.
ARTICLE I
Exercise of Warrant
1.1 Method of Exercise. This Warrant may be exercised as a whole or in
part from time to time. To exercise this Warrant, the holder hereof or permitted
assignees of all rights of the registered owner hereof shall deliver to the
Company, at the Warrant Office designated in Section 2.1, (a) a written notice
in the form of the Subscription Notice attached as an exhibit hereto, stating
therein the election of such holder or such permitted assignees of the holder to
exercise this Warrant in the manner provided in the Subscription Notice, (b)
payment in full of the Exercise Price (in the manner described below) for all
Warrant Shares purchased hereunder, and (c) this Warrant. Subject to compliance
with Section 3.1(a)(vi), this Warrant shall be deemed to be exercised on the
date of receipt by the Company of the Subscription Notice, accompanied by
payment for the Warrant Shares and surrender of this Warrant, as aforesaid, and
such date is referred to herein as the "Exercise Date". Upon such exercise
(subject as aforesaid), the Company shall issue and deliver to such holder
certificate(s) for the full number of the Warrant Shares purchasable by such
holder hereunder, against the receipt by the Company of the total Exercise Price
payable hereunder for all the Warrant Shares, (a) in cash or by certified or
cashier's check or (b) by surrendering Warrant Shares having a Current Market
value equal to the Exercise Price for all the Warrant Shares, so purchased. The
Person in whose name the certificate(s) for Common Stock is to be issued shall
be deemed to have become a holder of record of such Common Stock on the Exercise
Date.
1.2 Fractional Shares. In lieu of any fractional shares of Common Stock
which would otherwise be issuable upon exercise of this Warrant, the Company
shall issue a certificate for the next
higher number of whole shares of Common Stock for any fraction of a share which
is one-half or greater. No shares will be issued for less than one-half a share.
ARTICLE II
Warrant Office; Transfer
2.1 Warrant Office. The Company shall maintain an office for certain
purposes specified herein (the "Warrant Office"), which office shall initially
be the Company's office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ and may subsequently be such other office of the Company or of any
transfer agent of the Common Stock in the continental United States as to which
written notice has previously been given to the holder of this Warrant. The
Company shall maintain, at the Warrant Office, a register for the Warrant, in
which the Company shall record the name and address of the person in whose name
this Warrant has been issued, as well as the name and address of each permitted
assignee of the rights of the registered owner hereof.
2.2 Ownership of Warrant. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Article II.
2.3 Transfer of Warrants. The Company agrees to maintain at the Warrant
Office books for the registration and transfer of this Warrant. The Company,
from time to time, shall register the transfer of this Warrant in such books
upon surrender of this Warrant at the Warrant Office properly endorsed or
accompanied by appropriate instruments of transfer and written instructions for
transfer satisfactory to the Company. Upon any such transfer, a new Warrant
shall be issued to the transferee and the surrendered Warrant shall be canceled
by the Company. The registered holder of this Warrant shall pay all taxes and
all other expenses and charges payable in connection with the transfer of
Warrants pursuant to this Section 2.3.
2.4 Required Registration. The registered holder of this Warrant shall
be entitled to all of the rights and benefits of a shareholder under the
Registration Rights Agreement dated April 30, 1997 (the "Registration Rights
Agreement") between the Company and certain of its shareholders. The Warrant
Shares shall be considered Registrable Securities under the Registration Rights
Agreement. The terms of the Registration Rights Agreement are hereby
incorporated herein by reference for all purposes and shall be considered a part
of this warrant as if they had been fully set forth herein.
2.5 Acknowledgment of Rights. The Company will, at the time of the
exercise of this Warrant in accordance with the terms hereof, upon the request
of the registered holder hereof, acknowledge in writing its continuing
obligation to afford to such holder any rights (including without limitation,
any right to registration of the Warrant Shares) to which such holder shall
continue to be entitled in accordance with the provisions of this Warrant,
provided that if the holder of this Warrant shall fail to make any such request,
such failure shall not affect the continuing obligation of the Company to afford
to such holder any such rights.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than securities and transfer taxes) and other charges
payable in connection with the preparation, issuance and delivery of Warrants
and related Warrant Shares hereunder.
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2.7 Compliance with Securities Laws. The holder hereof understands and
agrees that the following restrictions and limitations shall be applicable to
all Warrant Shares and resales or other transfers of such Shares or Warrants
pursuant to the Securities Act:
(a) The holder hereof agrees that the Warrant Shares shall not
be sold or otherwise transferred unless the Warrant Shares are
registered under the Securities Act and state securities laws or are
exempt therefrom.
(b) A legend in substantially the following form has been or
will be placed on the certificate(s) evidencing the Warrant Shares:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 or any state
securities act. The securities have been acquired for
investment and may not be sold, transferred, pledged or
hypothecated unless (i) they shall have been registered under
the Securities Act of 1933 and any applicable state securities
act, or (ii) the corporation shall have been furnished with an
opinion of counsel, satisfactory to counsel for the
corporation that registration is not required under any of
such acts."
(c) Stop transfer instructions have been or will be imposed
with respect to the Warrant Shares so as to restrict resale or other
transfer thereof, subject to this Section 2.7.
ARTICLE III
Anti-Dilution Provisions
3.1 Adjustment of Exercise Price and Number of Warrant Shares. The
Exercise Price shall be subject to adjustment from time to time as hereinafter
in this Article m provided. Upon each adjustment of the Exercise Price, except
pursuant to 3. l(a)(v), the registered holder of the Warrant shall thereafter be
entitled to purchase, at the Exercise Price resulting from such adjustment, the
number of shares of the Common Stock (calculated to the nearest whole share
pursuant to Section 1.2) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of the Common Stock
purchasable pursuant hereto immediately prior to such adjustment and dividing
the product thereof by the Exercise Price resulting from such adjustment.
(a) Exercise Price Adjustments. The Exercise Price shall be
subject to adjustment from time to time as follows:
(i) Issuances of Common Stock. If, at any time, the
Company shall issue any Common Stock other than Excluded Stock
(as hereinafter defined) without consideration or for a
consideration per share less than the Exercise Price
applicable immediately prior to such issuance, the Exercise
Price in effect immediately prior to each such issuance shall
immediately (except as provided below) be adjusted by reducing
such Exercise Price to an amount equal to the greater of (A)
the result obtained by dividing (x) the consideration, if any,
received by the Company upon such issuance by (y) the total
number of shares of Common Stock issued by the Company and (B)
$1.00.
For the purpose of any adjustment of the Exercise Price pursuant to
this clause (i) of this Section 3. l(a), the following provisions shall be
applicable:
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(A) Cash. In the case of the issuance of Common Stock for
cash, the amount of the consideration received by the Company shall be
deemed to be the amount of the cash proceeds received by the Company
for such Common Stock before deducting therefrom any reasonable
discounts, commissions, taxes or other expenses allowed, paid or
incurred by the Company for any underwriting or otherwise in connection
with the issuance and sale thereof.
(B) Consideration Other Than Cash. In the case of the issuance
of Common Stock (otherwise than upon the conversion of shares of
capital stock or other securities of the Company) for a consideration
in whole or in part other than cash, including securities acquired in
exchange therefor (other than securities by their terms so
exchangeable), the consideration other than cash shall be deemed to be
the fair value thereof as determined by the Board of Directors in good
faith, irrespective of any accounting treatment; provided, however,
that such fair value as determined by the Board of Directors shall not
exceed the aggregate Current Market Price of the shares of Common Stock
being issued as of Wee date We Board of Directors authorizes the
issuance of such shares.
(C) Options and Convertible Securities, etc. In case, at any
time, the Company shall issue any (i) options, warrants or other rights
to purchase or acquire Common Stock other than Excluded Stock (whether
or not at the time exercisable), (ii) securities by their terms
convertible into or exchangeable for Common Stock (whether or not at
the time so convertible or exercisable), or (iii) options, warrants or
rights to purchase such convertible or exchangeable securities (whether
or not at the time exercisable), the Exercise Price in effect
immediately prior to each such issuance shall immediately (except as
provided below) be reduced to the price determined in accordance with
Section 3.1(a)(i) and the following:
(1) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options, warrants or other rights to
purchase or acquire Common Stock shall be deemed to have been issued at
the time such options, warrants or rights were issued and for a
consideration equal to the consideration (determined in the runner
provided in subclauses (A) and (B) above), if any, received by the
Company upon the issuance of such options, warrants or rights plus the
minimum purchase price provided in such options, warrants or rights for
the Common Stock covered thereby;
(2) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such convertible
or exchangeable securities, or upon the exercise of options, warrants
or other rights to purchase or acquire such convertible or exchangeable
securities and the subsequent conversion or exchange thereof, shall be
deemed to have been issued at the time such securities were issued or
such options, warrants or rights were issued and for a consideration
equal to the consideration, if any, received by the Company for any
such securities and related options, warrants or rights (excluding any
cash received on account of accrued interest or accrued dividends),
plus the additional consideration, if any, to be received by the
Company upon the conversion or exchange of such securities and the
exercise of any related options, warrants or rights (the consideration
in each case to be determined in the manner provided in subclauses (A)
and (B) above);
(3) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options, warrants or rights or
conversion or of exchange for such convertible or exchangeable
securities or any change in the consideration to be received by the
Company upon such exercise, conversion or exchange, including, but not
limited to, a change
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resulting from the anti-dilution provisions thereof, the Exercise Price
as then in effect shall forthwith be readjusted to such Exercise Price
as would have been obtained had an adjustment been made upon the
issuance of such options, warrants or rights not exercised prior to
such change, or securities not converted or exchanged prior to such
change, on the basis of such change;
(4) on the expiration or cancellation of any such options,
warrants or rights, or the termination of the right to convert or
exchange such convertible or exchangeable securities, if the Exercise
Price shall have been adjusted upon the issuance thereof, the Exercise
Price shall forthwith be readjusted to such Exercise Price as would
have been obtained had an adjustment been made upon the issuance of
such options, warrants, rights or securities on the basis of the
issuance of only the number of shares of Common Stock actually issued
upon the exercise of such options, warrants or rights, or upon the
conversion or exchange of such securities; and
(5) if the Exercise Price shall have been adjusted upon the
issuance of any such options, warrants, rights or convertible or
exchangeable securities, no further adjustment of the Exercise Price
shall be made for the actual issuance of Common Stock upon the
exercise, conversion or exchange thereof; provided, however, that no
increase in the initial Exercise Price shall be made pursuant to this
Section 3.1(a)(i)(C).
(ii) Excluded Stock. "Excluded Stock" shall mean
shares of Common Stock issued or reserved for issuance by the
Company (A) upon exercise of any stock purchase warrant issued
by the Company prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) upon exercise of
any options or warrants issued to officers, directors or
employees of the Company pursuant to a stock option incentive
plan approved by the Board of Directors of the Company
(provided that the aggregate number of shares of Common Stock
which may be issued under any employee stock option incentive
plans shall not exceed 20% of the issued and outstanding
shares of Common Stock of the company), (C) upon exercise of
this Warrant, (D) pursuant to the terms of any deferred
compensation plan instituted by the Company for the benefit of
certain national marketing organizations acting on behalf of
the Company or certain of fixers of the Company or its
subsidiaries which plan is approved by the Board of Directors
of the Company, or (1;) pursuant to a stock dividend,
subdivision or split-up covered by clause (iv) of this Section
3. l(a).
(iii) Stock Dividends. If the number of shares of
Common Stock outstanding at any time after the date of this
Warrant is increased by a stock dividend payable in shares of
Common Stock or by a subdivision or split-up of shares of
Common Stock, then immediately after the record date fixed for
the determination of holders of Common Stock entitled to
receive such stock dividend or the effective date of such
subdivision or split-up, as the case may be, the Exercise
Price shall be appropriately adjusted so that the adjusted
Exercise Price shall bear the same relation to the Exercise
Price in effect immediately prior to such adjustment
as the total number of shares of Common Stock outstanding
immediately prior to such action shall bear to the total
number of shares of Common Stock outstanding immediately after
such action.
(iv) Combination of Stock. If the number of shares of
Common Stock outstanding at any time after the date of
issuance of this Warrant is decreased by a combination of the
outstanding shares of Common Stock, then, immediately after
the effective date of such combination, the Exercise Price
shall be appropriately adjusted so that the adjusted Exercise
Price shall bear the same relation to the Exercise Price in
effect immediately prior to such adjustment
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as the total number of shares of Common Stock outstanding
immediately prior to such action shall bear to the total
number of shares of Common Stock outstanding immediately after
such action.
(v) Reorganizations, etc. In case of any capital
reorganization of the Company, or of any reclassification of
the Common Stock, or in case of the consolidation of the
Company with or the merger of the Company with or into any
other Person or of the sale, lease or other transfer of all or
substantially all of the assets of the Company to any other
Person, this Warrant shall, after such capital reorganization,
reclassification, consolidation, merger, sale, lease or other
transfer, be exercisable for the number of shares of stock or
other securities or property to which the Common Stock
issuable (at the time of such capital reorganization,
reclassification, consolidation, merger, sale, lease or other
transfer) upon exercise of this Warrant would have been
entitled to receive upon such capital reorganization,
reclassification, consolidation, merger, sale, lease or other
transfer if such exercise had taken place; and in any such
case, if necessary, the provisions set forth herein with
respect to the rights and interests thereafter of the holder
of this Warrant shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares of
stock or other securities or property thereafter deliverable
on the exercise of this Warrant. In case of any distribution
by the Company of any security (including rights or warrants
to subscribe for any such securities, evidences of its
indebtedness, cash or other assets to all of the holders of
its Common Stock, then in each such case the Exercise Price in
effect thereafter shall be determined by multiplying the
Exercise Price in effect immediately prior thereto by a
fraction the numerator of which shall be the total number of
outstanding shares of Common Stock multiplied by the Current
Market Price on the record date mentioned below, less the fair
market value (as determined in good faith by the Board of
Directors) of the securities, evidences of its indebtedness,
cash or other assets distributed by the Company and the
denominator of which shall be the total number of outstanding
shares of Common Stock multiplied by the Current Market Price;
such adjustment shall become effective as of the record date
for the determination of stockholders entitled to receive such
distribution. The subdivision or combination of shares of
Common Stock issuable upon exercise of this Warrant at any
time outstanding into a greater or lesser number of shares of
Common Stock (whether with or without par value) shall not be
deemed to be a reclassification of the Common Stock of the
Company for the purposes of this clause (v).
(vi) Rounding of Calculations: Minimum Adjustment.
All calculations under this Section 3.1(a) and under Section
3.1(b) shall be made to the nearest cent or to the nearest
whole share (as provided in Section 1.2) share, as the case
may be. Any provision of this Section 3.1 to the contrary
notwithstanding, no adjustment in the Exercise Price shall be
made if the amount of such adjustment would be less than one
percent, but any such amount shall be carried forward and an
adjustment with respect thereto shall be made at the time of
and together with any subsequent adjustment which, together
with such amount and any other amount or amounts so carried
forward, shall aggregate one percent or more.
(vii) Timing of Issuance of Additional Common Stock
Upon Certain Adjustments. In any case in which the provisions
of this Section 3.1(a) shall require that an adjustment shall
become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event
issuing to the holder of this Warrant after such record date
and before the occurrence of such event the additional shares
of Common Stock or other property issuable or deliverable upon
exercise by reason of the adjustment required by such event
over and above the shares of Common Stock or other property
issuable or deliverable upon such exercise before giving
effect to such adjustment; provided, however, that the Company
upon request shall
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deliver to such holder a due ▇▇▇▇ or other appropriate
instrument evidencing such holder's right to receive such
additional shares or other property, and such cash, upon the
occurrence of the event requiring such adjustment.
(b) Current Market Price. The Current Market Price shall mean, as of
any date, 5 % of the sum of the average, for each of the 20 consecutive Trading
Days immediately prior to such date, of either: (i) the high and low sales
prices of the Common Stock on such Trading Day as reported on the composite tape
for the principal national securities exchange on which the Common Stock may
then be listed, or (ii) if the Common Stock shall not be so listed on any such
Trading Day, the high and low sales prices of Common Stock in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotations System ("NASDAQ") for National Market Issues, or
(iii) if the Common Shares shall not be included in the NASDAQ National Market
System on any such Trading Day, the representative bid and asked prices at the
end of such Trading Day in such market as reported by NASDAQ, or (iv) if there
be no such representative prices reported by NASDAQ, the lowest bid and highest
asked prices at the end of such Trading Day in the over-the-counter market as
reported by the National Quotation Bureau, Inc., or any successor organization.
For purposes of determining Current Market Price, the term "Trading Days shall
mean a day on which an amount greater than zero can be calculated with respect
to the Common Stock under any one or more of the foregoing categories (i), (ii),
(iii) and (iv), and the "end" thereof, for the purposes of categories (iii) and
(iv), shall mean the exact time at which trading shall end on the New York Stock
Exchange. If the Current Market Price cannot be determined under any of the
foregoing methods, Current Market Price shall mean the fair value per share of
Common Stock on such date determined by the Board of Directors in good faith,
irrespective of any accounting treatment.
(c) Statement Regarding Adjustments. Whenever the Exercise Price shall
be adjusted as provided in Section 3.1(a), and upon each change in the number of
shares of the Common Stock issuable upon exercise of this Warrant, the Company
shall forthwith file, at the office of any transfer agent for this Warrant and
at the principal office of the Company, a statement showing in detail the facts
requiring such adjustment and the Exercise Price and new number of shares
issuable that shall be in effect after such adjustment, and the Company shall
also cause a copy of such statement to be given to the holder of this Warrant.
Each such statement shall be signed by the Company's chief financial or
accounting officer. Where appropriate, such copy may be given in advance and may
be included as part of a notice required to be mailed under the provisions of
Section 3. l(d).
(d) Notice to Holders. In the event the Company shall propose to take
any action of the type described in clause (iii), (iv, or (v) of Section 3.
l(a), the Company shall give notice to the holder of this Warrant, in the manner
set forth in Section 6.6, which notice shall specify the record date, if any,
with respect to any such action and the approximate date on which such action is
to take place. Such notice shall also set forth such facts with respect thereto
as shall be reasonably necessary to indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the Exercise
Price and the number, kind or class of shares or other securities or property
which shall be deliverable upon exercise of this Warrant. In the case of any
action which would require the fixing of a record date, such notice shall be
given at least 10 days prior to the date so faxed, and in case of all other
action, such notice shall be given at least 15 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(e) Treasury Stock. For the purposes of this Section 3.1, the sale or
other disposition of any Common Stock of the Company theretofore held in its
treasury shall be deemed to be an issuance thereof.
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3.2 Costs. The registered holder of this Warrant shall pay all
documentary, stamp, transfer or other transactional taxes attributable to the
issuance or delivery of shares of Common Stock of the Company upon exercise of
this Warrant; provided further, and not in limitation of the foregoing, that the
Company shall not be required to pay any taxes which may be payable in respect
of any transfer involved in the issuance or delivery of any certificate for such
shares. The holder of this Warrant shall reimburse the Company for any such
taxes assessed against the Company.
3.3 Reservations of Shares. The Company shall reserve at all times so
long as this Warrant remains outstanding, free from preemptive rights, out of
its treasury Common Stock or its authorized but unissued shares of Common Stock,
or both, solely for the purpose of effecting the exercise of this Warrant,
sufficient shares of Common Stock to provide for the exercise hereof.
3.4 Valid Issuance. All shares of Common Stock which may be issued upon
exercise of this Warrant will upon issuance by the Company be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof attributable to any act or omission by the
Company, and the Company shall take no action which will cause a contrary result
(including without limitation, any action which would cause the Exercise Price
to be less than the par value, if any, of the Common Stock).
ARTICLE IV
Terms Defined
As used in this Warrant, unless the context otherwise requires, the
following terms have the respective meanings set forth below or in the Section
indicated:
"Board of Directors" -- the Board of Directors of the Company.
"Common Stock" -- the Company's authorized Common Stock, $1.00 par
value per share.
"Company" -- American Equity Investment Life Holding Company, a
Delaware corporation, and any other corporation assuming or required to assume
the obligations undertaken in connection with this Warrant.
"Current Market Price" -- Section 3.1(b).
"Outstanding" -- when used with reference to Common Stock at any date,
all issued shares of Common Stock (including, but without duplication, shares
deemed issued pursuant to Article E) at such date, except shares then held in
the treasury of the Company.
"NASDAQ" -- Section 3.1(b).
"Person" -- any individual, corporation, partnership, must,
organization, association or other entity or individual.
"Securities Act" -- the Securities Act of 1933 and the rules and
regulations thereunder, all as the same shall be in effect at the time.
"Trading Day" -- Section 3.1(b).
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"Warrant" --- this Warrant and any successor or replacement Warrant
delivered in accordance with Section 2.3 or 6.8.
"Warrant Office" --- Section 2.1.
"Warrant Shares" --- shall mean the shares of Common Stock purchased or
purchasable by the registered holder of this Warrant or the permitted assignees
of such holder upon exercise thereof pursuant to Article I hereof.
ARTICLE V
Covenant of the Company
The Company covenants and agrees that this Warrant shall be binding
upon any corporation succeeding to the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets.
ARTICLE VI
Miscellaneous
6.1 Entire Agreement. This Warrant contains the entire agreement
between the holder hereof and the Company with respect to the shares which it
can purchase upon exercise hereof and the related transactions and supersedes
all prior arrangements or understanding with respect thereto.
6.2 Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Delaware.
6.3 Waiver and Amendment. Any term or provision of this Warrant may be
waived at any time by the party which is entitled to the benefits thereof and
any term or provision of this Warrant may be amended or supplemented at any time
by agreement of the holder hereof and the Company, except that any waiver of any
term or condition, or any amendment or supplementation, of this Warrant must be
in writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Warrant shall not in any way affect, limit or waive a party's
rights hereunder at any time to enforce strict compliance thereafter with every
term or condition of this Warrant.
6.4 Illegality. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom the
benefit of the provision exists, be in any way impaired.
6.5 Copy of Warrant. A copy of this Warrant shall be filed among the
records of the Company.
6.6 Notice. Any notice or other document required or permitted to be
given or delivered to the holder hereof shall be delivered at, or sent by
certified or registered mail to such holder at, the last address shown on the
books of the Company maintained at the Warrant Office for the registration of
this Warrant or at any more recent address of which the holder hereof shall have
notified the Company in writing. Any notice or other document required or
permitted to be given or delivered to the Company, other than such notice or
documents required to be delivered to the Warrant Office, shall be delivered at,
or sent by
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certified or registered mail to, the office of the Company at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or such other address within the continental
United States of America as shall have been furnished by the Company to the
holder of this Warrant.
6.7 Limitation of Liability: Not Stockholders. No provision of this
Warrant shall be construed as conferring upon the holder hereof the right to
vote, consent, receive dividends or receive notices other than as herein
expressly provided in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of the
Company. No provision hereof, in the absence of affirmative action by the holder
hereof to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the holder hereof, shall give rise to any liability of
such holder for the purchase price of any shares of Common Stock or as a
stockholder of the Company, whether such Liability is asserted by the Company or
by creditors of the Company.
6.8 Exchange, Loss, Destruction, etc. of Warrant. Upon receipt of
evidence satisfactory to the Company of the loss, theft, mutilation or
destruction of this Warrant, and in the case of any such loss, theft or
destruction upon delivery of a bond of indemnity in such form and amount as
shall be reasonably satisfactory to the Company, or in the event of such
mutilation upon surrender and cancellation of this Warrant, the Company will
make and deliver a new Warrant of like tenor, in lieu of such lost, stolen,
destroyed or mutilated Warrant; provided, however, that the original recipient
of this Warrant shall not be required to provide any such bond of indemnity and
may in lieu thereof provide his agreement of indemnity. Any Warrant issued under
the provisions of this Section 6.8 in lieu of any Warrant alleged to be lost,
destroyed or stolen, or in lieu of any mutilated Warrant, shall constitute an
original contractual obligation on the part of the Company. This Warrant shall
be promptly canceled by the Company upon the surrender hereof in connection with
any exchange or replacement. The registered holder of this Warrant shall pay all
taxes (including securities transfer taxes) and all other expenses and charges
payable in connection with the preparation, execution and delivery of Warrants
pursuant to this Section 6.8.
6.9 Assignment: Binding Effect. Subject to the provisions of Section
2.3 and Article V, this Agreement shall be binding upon and inure to benefit of
the Company and the holder of this Warrant and their respective heirs,
executors, administrators, successors, and assigns.
6.10 Headings. The Article and Section and other headings herein are
for convenience only and are not a part of this Warrant and shall not affect the
interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name.
Dated: April 30, 1997
AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President
--------------------------
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