Exhibit 10.4
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, XXXXXXX XXXXXX XXXXX INC.,
a Texas corporation, 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 per unit of $30,000 (as adjusted pursuant to the
terms of this Warrant, the "Exercise Price"), 22.75 units (the "Units") each
consisting of 2,500 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 500 common stock purchase warrants (the "Unit Warrants")
with an exercise price of $12.00 per Unit, 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 and Unit Warrants purchased hereunder, and (c) this Warrant.
Subject to compliance with Section 3.l(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 Unit Warrants 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
and Unit Warrants 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 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxx
00000 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
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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.
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 Unit Warrants and resales or other transfers of such
Shares or Warrants pursuant to the Securities Act:
(a) The holder hereof agrees that the Warrant Shares and Unit Warrants
shall not be sold or otherwise transferred unless the Warrant Shares or Unit
Warrants 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 and the Unit
Warrants:
"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 and the Unit Warrants 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 III 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
3
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:
(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 the date the 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:
4
(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 manner
provided in subclasses (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 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. l(a)(i)(C).
5
(ii) Excluded Stock. "Excluded Stock" shall mean shares of
Conunon Stock issued or reserved for issuance by the Company (A) upon
exercise of any stock purchase warrant issued by the Company prior to
April 30, 19979 (B) 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) to Xxxxx X. Xxxxx
pursuant to the terms of the Stock Option Agreement dated as of
______________, 199_, (E) 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 officers of the Company or its subsidiaries which plan is
approved by the Board of Directors of the Company, or (F) 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 determinatioa 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 ad usted 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 tirne 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 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
6
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. Jn 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 arnounts 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.l(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
deliver to such holder a due xxxx 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
7
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 Conimon
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 Day" 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.l(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 maued 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
3.1(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 fixed, 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.
8
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 and
the Unit Warrants, sufficient shares of Common Stock to provide for the exercise
hereof.
3.4 Valid Issuance. All shares of Common Stock and Unit Warrants 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.l(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 III) at such date, except shares then held in the
treasury of the Company.
NASDAQ -- Section 3.1(b).
Person - any individual, corporation, partnership, trust, organization,
association or other
9
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. l(b).
Units -- the investment units each consisting of 2,500 shares of
Conunon Stock of the Company and 500 Unit Warrants.
Unit Warrants - the common stock purchase warrants issued by the
Company entitling the holder thereof to purchase shares of the Common Stock of
the Company at an exercise price of $12.00 per share for a term of two years
from their date of issuance.
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 bidding
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 t 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
10
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 certified or registered mail to, the office of the Company at 0000
Xxxxxxx Xxxxxxx, Xxx Xxxxxx, Xxxx 00000 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
sliall be reasonably satisfactory to the Company, or in the event of such
mutilation upon surrender and cancellation of this Warrant, the Compaay 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 issm 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 cancelled by the Company upon the
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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 Fffect. 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: May 12, 1997
AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY
By: /s/ X.X. Xxxxx
----------------------------
X.X. Xxxxx, President
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SUBSCRIPTION NOTICE
The undersigned, the holder of the foregoing Warrant, hereby elects to
exercise purchase rights represented by said Warrant for, and to purchase
thereunder shares of the Common Stock covered by said Warrant and herewith makes
payment in full therefor pursuant to Section 1.1 of such Warrant, and requests
(a) that certificates for such shares (and any securities or other property
issuable upon such exercise) be issued in the name of, and delivered to,
______________________________________ and (b) if such shares shall not include
all of the shares issuable as provided in said Warrant, that a new Warrant of
like tenor and date for the balance of the shares issuable thereunder be
delivered to the undersigned.
------------------------------
Dated: _________________, 1999
ASSIGNMENT
For value received, ___________________________hereby sells, assigns and
transfers unto __________________________________the within Warrant, together
with all right, title and interest therein and does hereby irrevocably
constitute and appoint ___________________ attorney, to transfer said Warrant on
the books of the Company, with full power of substitution.
-----------------------------
Dated: __________________, 1999
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