Exhibit 1.1
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of April 8, 1996, between AmVestors
Financial Corporation, a Kansas corporation (the "Company"), and
Boatmen's Trust Company, a Missouri corporation, warrant agent (the
"Warrant Agent").
RECITALS
A. In connection with the merger of Financial Benefit Group, Inc., a
Delaware corporation ("FBG"), with and into AmVestors Acquisition
Subsidiary, Inc., a Delaware corporation and a wholly-owned subsidiary of
the Company (the "Merger Subsidiary"), the Company, FBG and the Merger
Subsidiary have entered into the Agreement and Plan of Merger, dated as
of September 8, 1995, as amended (the "Merger Agreement").
B. Pursuant to Section 1.2(e) of the Merger Agreement, the Company
proposes to issue, as part of the merger consideration, a new issue of
warrants (the "Warrants"), entitling the holders thereof to purchase
shares (the "Warrant Shares") of common stock, no par value, of the
Company (the "Common Stock") and which Warrants shall be governed by the
terms and provisions of this Warrant Agreement.
C. The Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, registration of transfer, replacement and
exchange of warrant certificates and the exercise of Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
AGREEMENTS
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth herein, and the Warrant Agent hereby accepts such
appointment, upon the terms and conditions hereinafter set forth.
SECTION 2. Amount Issued. Subject to the provisions of this Warrant
Agreement, Warrants to purchase up to an aggregate of Warrant Shares
may be issued and delivered by the Company hereunder. The Warrants issued
hereunder shall be deemed to have been issued on the Closing Date (as
defined in the Merger Agreement).
SECTION 3. Purchase Price; Form of Warrant Certificate.
3.1 The certificates evidencing the Warrants (the "Warrant
Certificates") (and the forms of election to purchase Warrant Shares and
of assignment to be printed on the reverse thereof) shall be
substantially in the form set forth in Exhibit A hereto and may have such
letters, numbers or other marks of identification or designation and such
legends, summaries or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Warrant Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of The Nasdaq Stock Market or any national
stock exchange on which the Warrants may from time to time be listed. The
Warrant Certificates shall be dated as of the Closing Date, upon initial
issuance by the Company, and thereafter, upon transfer or exchange, as of
the date of countersignature thereof by the Warrant Agent.
3.2 Each Warrant shall entitle the holder thereof to purchase one
share of Common Stock upon the exercise thereof at the applicable
Exercise Price (as defined in Section 6 hereof) subject to adjustment as
provided in Section 13 hereof; provided, however, that, as discussed in
Section 13(f) herein, the Warrants are exercisable only for whole shares
and no fractional shares will be issued. Each Warrant Certificate shall
be executed on behalf of the Company by the manual or facsimile signature
of the present or any future president of the Company, under its
corporate seal, affixed or in facsimile, attested by the manual or
facsimile signature of the present or any future Secretary or Assistant
Secretary of the Company.
3.3 The term "Common Stock" shall mean the aforementioned Common
Stock, together with any other securities or property that may be issued
by the Company in connection therewith or in substitution therefor, as
provided herein.
SECTION 4. Registration and Countersignature.
4.1 The Warrant Agent shall maintain books for the registration, and
registration of transfer, of the Warrant Certificates. The Warrant
Certificates shall be countersigned by the Warrant Agent and shall not be
valid for any purpose unless so countersigned. The Warrant Certificates
shall be so countersigned, however, by the Warrant Agent and shall be
delivered by the Warrant Agent, notwithstanding that the persons whose
manual or facsimile signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at time of such
countersignature or delivery.
4.2 Prior to due presentment for registration or transfer of the
Warrant Certificates, the Company and the Warrant Agent shall deem and
treat the registered holder thereof as the absolute owner of Warrants
(notwithstanding any notation of ownership or other writing on the
Warrant Certificate made by anyone other than the Company or the Warrant
Agent), for the purpose of any exercise thereof and for all other
purposes and no transfer or exchange will be effective unless made in
accordance with Sections 10 and 11 herein and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant
Agent shall from time to time register the transfer of any outstanding
Warrant Certificates upon the books to be maintained by the Warrant Agent
for that purpose, upon surrender thereof to the Company or to the Warrant
Agent accompanied (if so required by the Company or the Warrant Agent) by
a written instrument or instruments of transfer in form satisfactory to
the Company and the Warrant Agent, duly executed by the registered holder
or by a duly authorized representative or attorney, such signature to be
guaranteed by an eligible guarantee institution with a membership in an
approved Medallion Signature Guarantee Program, which institution may be
a commercial bank, trust company or savings association having an office
in the United States, a broker or dealer that is a member of the National
Association of Securities Dealers, Inc. or a member of a national
securities exchange (any such entity, as further defined in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, an "Eligible
Institution"). In all cases of written requests pursuant to Sections 5 or
6 hereof by an attorney, the original power of attorney, duly approved,
or copy thereof, duly certified and satisfactory to the Warrant Agent,
shall be deposited and remain with the Warrant Agent. In the case of
written request by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority
satisfactory to the Warrant Agent shall be produced and deposited with
the Warrant Agent. Upon any such registration of transfer, a new Warrant
Certificate shall be issued to the transferee and the surrendered Warrant
Certificate shall be cancelled by the Warrant Agent. Warrant Certificates
so cancelled shall be delivered by the Warrant Agent to the Company from
time to time or otherwise disposed of by the Warrant Agent in a manner
satisfactory to the Company. Warrant Certificates may be exchanged at the
option of the holder thereof when surrendered at the principal office of
the Warrant Agent in St. Louis or the principal office of the Company in
Topeka (in such event the Company shall forward the Warrant Certificates
surrendered and the instruments of transfer to the Warrant Agent) for
another Warrant Certificate or other Warrant Certificates of like tenor
and representing in the aggregate the number of Warrants evidenced by the
Warrant Certificate or Warrant Certificates so surrendered. The Warrant
Agent shall countersign and deliver, in accordance with the provisions of
this Section 5 and of Section 4 hereof, the new Warrant Certificate or
Warrant Certificates required pursuant to the provisions of this Section
5, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrant Certificates duly executed on behalf of
the Company for such purpose.
SECTION 6. Duration and Exercise of Warrants.
6.1 (a) The Warrants may be exercised at any time or from time to
time after the date hereof and will expire at 5:00 p.m., Central Standard
time, on April 3, 2002 (the "Expiration Date"), at which time all rights
evidenced by the Warrants shall cease and the Warrants shall become void.
(b) Subject to the provisions of this Warrant Agreement, the
registered holder of each Warrant shall have the right to purchase from
the Company (and the Company shall issue and sell to such registered
holder) the number of fully paid and nonassessable Warrant Shares set
forth on such holder's Warrant Certificate (or such number of Warrant
Shares as may result from adjustments made from time to time as provided
in this Warrant Agreement), at the price of $ per Warrant Share in lawful
money of the United States of America (such exercise price per Warrant
Shares, as adjusted from time to time as provided herein, being referred
to herein as the "Exercise Price"), upon (i) surrender of the Warrant
Certificate to the Company at the principal office of the Warrant Agent
in St. Louis or the principal office of the Company in Topeka with the
exercise form on the reverse thereof duly completed and signed by the
registered holder or holders thereof or by a duly appointed legal
representative thereof or by a duly authorized attorney, such signature
to be guaranteed by an Eligible Institution if the Warrant Shares are to
be issued to a person other than the registered holder of the Warrants
and (ii) payment, in lawful money of the United States of America and in
accordance with Section 6.2 hereof, of the Exercise Price for the Warrant
Share or Warrant Shares in respect of which such Warrant is exercised.
Upon surrender of a Warrant Certificate, and payment of the Exercise
Price, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the registered holder
of such Warrants and in such name or names as such registered holder may
designate, a certificate or certificates for the number of Warrant Shares
so purchased upon the exercise of such Warrants, together with cash in
respect of any fraction of a Warrant Share issuable upon such surrender.
As set forth in Section 13(d), no adjustment shall be made for certain
cash dividends paid or payable on Warrant Shares issuable upon exercise
of a Warrant.
(c) Each person in whose name any certificate for Warrant Shares is
issued upon the exercise of Warrants shall for all purposes be deemed to
have become the holder of record of the Common Stock represented thereby
on, and such certificate shall be dated, the date upon which the Warrant
Certificate evidencing such Warrants was duly surrendered and payment of
the Exercise Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a
date upon which the Common Stock transfer books of the Company are
closed, such person shall be deemed to have become the record holder of
such Warrant Shares on, and such certificate shall be dated, the next
succeeding business day on which the Common Stock transfer books of the
Company are open.
6.2 The Exercise Price payable upon exercise of Warrants may be paid
by money order or bank draft. Subject to Section 7 hereof, upon surrender
of a Warrant Certificate and payment of the Exercise Price (and if the
Exercise Price is paid by check other than an official bank draft, upon
collection of the proceeds of such check), the Company shall issue and
cause to be registered, countersigned and delivered to or upon the
written order of the registered holder of such Warrant and in such name
or names as may duly be designated, a certificate for the Warrant Shares
being issued pursuant to the Warrant then being exercised (as adjusted as
provided in Section 13 hereof). Such certificate shall be deemed to have
been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such share or shares of
Common Stock, as of the date of surrender of such Warrant Certificate and
payment of the Exercise Price; provided, however, that if, at the date of
surrender of such Warrant Certificate and payment of such Exercise Price,
the transfer books for the Common Stock shall be closed, the certificate
for such share or shares of Common Stock shall be issuable as of the date
on which such books shall next be opened (whether before, on or after the
Expiration Date) and until such date the Company shall be under no duty
to deliver any certificate for such share or shares.
6.3 In the event that less than all the Warrants represented by a
Warrant Certificate are exercised by the registered holder thereof or a
duly authorized representative before 5:00 p.m., Central Standard time,
on the Expiration Date, a new Warrant Certificate will be issued for the
remaining number of Warrants exercisable pursuant to the Warrant
Certificate so surrendered, and the Warrant Agent shall countersign and
deliver the required new Warrant Certificate pursuant to the provisions
of this Section 6 and of Section 4 hereof and the Company, whenever
required by the Warrant Agent, shall deliver to the Warrant Agent a
Warrant Certificate duly executed on behalf of the Company for such
purpose.
6.4 The number of shares of Common Stock to be received upon
exercise of a Warrant and the price to be paid for a share of Common
Stock are subject to adjustment from time to time as hereinafter set
forth.
SECTION 7. Payment of Taxes. The Company shall pay all documentary
stamp and transfer taxes attributable to the original issuance of the
Warrants and of the shares of Common Stock upon the exercise of Warrants;
provided, however, that the Company shall not be required to (a) pay any
tax which may be payable in respect of any transfer or delivery of Warrant
Certificates or the issuance or delivery of certificates for shares of
Common Stock in a name other than that of the registered holder of the
Warrant Certificate upon the exercise of a Warrant or (b) issue or deliver
any certificate for shares of Common Stock upon the exercise of any
Warrants until any such tax required to be paid under clause (a) shall have
been paid, all such tax being payable by the holder of such Warrant at the
time of surrender.
SECTION 8. Mutilated or Missing Warrant Certificates. In case any
Warrant Certificate shall be mutilated, lost, stolen or destroyed, upon
cancellation of the mutilated, lost, stolen or destroyed Warrant
Certificate, the Company shall issue, and the Warrant Agent shall
countersign and deliver in exchange and substitution for the mutilated,
lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate
of like tenor and evidencing the number of shares of Common Stock
purchasable upon exercise of the Warrant Certificate so mutilated, lost,
stolen or destroyed, but only upon receipt of evidence satisfactory to
the Warrant Agent of such loss, theft or destruction of such Warrant
Certificate and an indemnity, if requested, also satisfactory to it.
Applicants for any such substitute Warrant Certificate shall also comply
with such other reasonable requirements and pay such other reasonable
charges as the Company or the Warrant Agent may prescribe, including the
posting of a customary bond. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or
not the allegedly mutilated, lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone.
SECTION 9. Reservation of Shares; Stock Certificates.
The Company covenants and agrees that it shall at all times reserve or
cause to be reserved for issuance and delivery upon exercise of the
Warrants, a sufficient number of shares of Common Stock or other securities
of the Company from time to time issuable upon exercise of the Warrants.
The Company covenants and agrees that it shall take all such action as may
be necessary to ensure that all such shares shall be duly authorized and,
when issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free and clear of all
preemptive rights. The Company will keep a copy of this Warrant Agreement
on file with its transfer agent, Boatmen's Trust Company, or any successor
thereto (the "Transfer Agent"). The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent
certificates issuable upon exercise of outstanding Warrants. The Company
will supply such Transfer Agent with duly executed certificates for such
purpose. All Warrant Certificates surrendered upon exercise of Warrants
shall be cancelled by the Warrant Agent and shall thereafter be delivered
to the Company or otherwise disposed of in a manner satisfactory to the
Company. Unless all Warrants shall have been exercised prior to 5:00 p.m.
Central Standard time, on the Expiration Date, the Warrant Agent shall
certify to the Company, as of the close of business on the Expiration Date,
the total aggregate amount of Warrants then outstanding, and thereafter no
shares of Common Stock shall be subject to reservation in respect of such
Warrants.
SECTION 10. Transfer and Registration of Warrants and Warrant Shares.
10.1 The Warrants and the Warrant Shares, and any interest in
either, may be sold, assigned, pledged, encumbered or in any other manner
transferred or disposed of, in whole or in part, only in accordance with
Section 11 hereof and in compliance with applicable United States federal
and state securities laws and the terms and conditions hereof.
10.2 The Warrants have been registered under the Securities Exchange
Act of 1934, as amended, pursuant to a registration statement on Form 8-A
(Registration No. 333-1309) which was declared effective by the
Securities and Exchange Commission (the "SEC") on March 14, 1996. The
Company will use its best efforts to keep such registration statement in
effect in accordance with applicable federal securities laws through the
Expiration Date or until such earlier time as no Warrants remain
outstanding. The Company covenants and agrees:
(a) to prepare and file with the SEC such amendments and
supplements to such Registration Statement and the
prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective
in accordance with applicable federal securities laws
through the ExpirationDate;
(b) as expeditiously as possible, to register or qualify
the Warrants, and to register or qualify the Warrant
Shares, under the securities or Blue Sky laws of each
jurisdiction in which such registration or
qualification is necessary; and
(c) to pay all expenses incurred by the Company in
complying with thisSection 10.2, including, without
limitation, (i) all registration and filing fees, (ii)
all printing expenses, (iii) all fees and disbursements
of counsel and independent public accountants for the
Company, (iv) all Blue Sky fees and expenses (including
fees and expenses of counsel in connection with any
Blue Sky surveys), and the entire expense of any
special audits incident to or required by any such
registration.
SECTION 11. Exchange, Transfer or Assignment of Warrants.
11.1 The Warrants may be exchanged or transferred, at the option
of the holder, upon presentation and surrender of Warrant Certificates to
the Warrant Agent or to the Company, for other Warrant Certificates of
different denominations, entitling the holder or holders thereof to
purchase in the aggregate the same number of Warrant Shares. Subject to
the preceding sentence, a Warrant Certificate may be divided or combined
with other Warrant Certificates that carry the same rights upon
presentation thereof at the office of the Warrant Agent or the Company,
together with written notice specifying the names and denominations in
which new Warrant Certificates are to be issued and signed by the holder
thereof.
11.2 The Warrants may be assigned or transferred, at the option of
the holder, upon surrender of Warrant Certificates to the Warrant Agent,
with the Warrant Assignment Form contained therein duly executed and
accompanied by funds sufficient to pay any transfer tax. The Warrant
Agent shall execute and deliver a new Warrant Certificate or Certificates
in the name of the assignee or assignees named in such instrument of
assignment and, if the holder's entire interest in the Warrants is not
being transferred or assigned, in the name of the holder, and the Warrant
Certificate surrendered shall promptly be cancelled.
11.3 Any transfer, exchange or assignment of the Warrants shall be
without charge (other than the cost of any transfer tax to be paid by
holder pursuant to Section 7 hereof) to the holder and any new Warrant
Certificates issued pursuant to this Section 11 shall be dated the state
such new Warrant Certificate is issued.
Section 12. Rights of Warrant Holder.
The holder of any Warrant shall not, by virtue thereof, be
entitled to any rights of a shareholder in the Company, either at law or
in equity, and the rights of the holder are limited to those expressed in
this Warrant Agreement.
Section 13. Antidilution Provisions.
The Exercise Price and the number of Warrant Shares that may be
purchased upon the exercise of a Warrant and the number of Warrants
outstanding will be subject to change or adjustment as follows:
(a) Stock Dividends, Stock Splits and Reverse Stock Splits and
Combinations. If at any time after the date of the issuance of the
Warrants and before 5:00 p.m., Central Standard time, on the
Expiration Date, (i) the Company shall fix a record date for the
issuance of any stock dividend payable in shares of capital stock of
the Company or (ii) the number of shares of Common Stock shall have
been increased by a subdivision or stock split of shares of Common
Stock or decreased by a reverse stock split or combination of shares
of Common Stock, then, on the record date fixed for the determination
of holders of Common Stock entitled to receive such dividend or
immediately after the effective date of such subdivision, stock split,
reverse stock split or combination, as the case may be, the number of
Warrant Shares to be delivered upon exercise of any Warrant will be
appropriately increased or decreased, as the case may be, so that each
holder of a Warrant thereafter will be entitled to receive the number
of shares of Common Stock that such holder would have owned or have
been entitled to receive immediately following such action had the
Warrant been exercised immediately prior thereto, and the Exercise
Price will be appropriately adjusted. The time of occurrence of any
event giving rise to an adjustment made pursuant to this Section 13(a)
shall, in the case of a subdivision, stock split, reverse stock split
or combination, be the effective date thereof and shall, in the case
of a dividend or distribution, be the record date thereof.
(b) Reorganization, Reclassification, Etc. If any capital
reorganization of the Company, or any reclassification of the Common
Stock, or any consolidation of the Company with or merger of the
Company with or into any other corporation or any sale, lease or
other transfer of all or substantially all of the assets of the
Company to any other entity (including any individual, partnership,
joint venture, corporation, trust or group thereof), shall be
effected in such a way that the holders of the Common Stock shall be
entitled to receive stock, securities or assets with respect to or
in exchange for Common Stock, then, upon exercise of the Warrants in
accordance with the terms of this Warrant Agreement and the Warrant
Certificates, each holder shall have the right to receive the kind
and amount of stock, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale,
lease or other transfer by a holder of the number of shares of
Common Stock that such holder would have owned or would have been
entitled to receive upon exercise of the Warrants had the Warrants
been exercised immediately before such reorganization,
reclassification, consolidation, merger or sale, lease or other
transfer, subject to adjustments that shall be as nearly equivalent
as may be practicable to the adjustments provided for in this
Section 13.
(c) Issuance. If at any time after the date of issuance of the
Warrants and before 5:00 p.m., Central Standard time, on the
Expiration Date the Company shall (i) issue any shares of Common Stock
(other than shares issued upon exercise of the Warrants or shares of
Common Stock that may be issued pursuant to any option, rights or
warrants outstanding as of the date hereof) without consideration or
at a price per share less than the Closing Price (as defined in
Section 13(f) hereof) immediately prior to such issuance, or (ii)
issue options, rights or warrants to subscribe for or purchase Common
Stock (or securities convertible into Common Stock) without
consideration or at a price per share (or having a conversion price
per share, if a security convertible into Common Stock) less than the
Closing Price immediately prior to such issuance, the Exercise Price
to be in effect after the date of such issuance shall be determined by
multiplying the Exercise Price in effect immediately prior to such
distribution or issuance by a fraction (i) the numerator of which
shall be the number of shares of Common Stock outstanding on the date
of such issuance plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock
so to be issued or to be offered for subscription or purchase (or the
aggregate initial conversion price of the convertible securities so to
be offered) would purchase at such Closing Price and (ii) the
denominator of which shall be the number of shares of Common Stock
outstanding on the date of such issuance plus the number of additional
shares of Common Stock to be issued or to be offered for subscription
or purchase (or into which the convertible securities so to be offered
are initially convertible); provided, however, that the provisions of
this subsection (c) shall not apply to any issuance of Common Stock
upon exercise of any Warrants. There shall be added to such
subscription price and included in the amount thereof for the purpose
of making the above calculation the price paid to the Company for any
rights or warrants to subscribe for or purchase, or for any securities
convertible into, Common Stock which are exercised or converted in
connection with an issuance of Common Stock under this subsection (c).
In case such subscription price may be paid in a consideration part or
all of which shall be in a form other than cash, the value of such
consideration shall be determined in good faith by the Board of
Directors of the Company. Shares of Common Stock owned by or held for
the account of the Company or any majority-owned subsidiary shall not
be deemed outstanding for the purpose of any such computation. An
adjustment made pursuant to this Section 13(c) shall become effective
retroactively to the time immediately after the date such issuance is
fixed (which date of issuance shall be the record date if a record
date therefor is fixed).
(d) Distributions. If at any time after the date of issuance of
the Warrants and before 5:00 p.m., Central Standard time, on the
Expiration Date the Company shall, to or for the account or benefit
of the holders of the outstanding shares of Common Stock, make any
distribution, payment or transfer of any asset, property or security
(but excluding those described in Section 13(a) or (b) hereof and
any cash distributions made as a dividend which in any fiscal year
in the aggregate are less than net earnings from continuing
operations for the previous fiscal year or dividends which are
consistent with past practice) of the Company or any of its
subsidiaries, and thereafter, successively upon each such
distribution or issuance, the Exercise Price in effect immediately
prior to such distribution or issuance shall forthwith be reduced to
a price determined by multiplying the Exercise Price in effect
immediately prior to such distribution or issuance by a fraction (i)
the numerator of which shall be the Closing Price per share of
Common Stock at the record date for the determination of
shareholders entitled to receive such distribution or issuance, less
the then fair market value (as determined in good faith by the Board
of Directors of the Company, whose determination shall be
conclusive) of the portion of such distribution applicable to one
share of Common Stock and (ii) the denominator of which shall be
such Closing Price per share of Common Stock. An adjustment made
pursuant to this Section 13(d) shall become effective retroactively
to the time immediately after the record date for the determination
of shareholders entitled to receive such distribution or issuance.
(e) Fractional Shares. No fractional shares of Common Stock or
scrip shall be issued to any holder in connection with the exercise
of a Warrant. Instead of any fractional shares of Common Stock that
would otherwise be issuable to such holder, the Company will pay to
such holder a cash amount in respect of such fractional interest
equal to that fractional interest of the then current Closing Price.
(f) Definition of Closing Price. For the purposes of this Warrant
Agreement, "Closing Price" means the closing price per share of the
Common Stock on the principal national securities exchange on which
the Common Stock is listed or admitted to trading or, if not listed or
traded on any such exchange, on The Nasdaq Stock Market or such other
over-the-counter quotations system on which such shares of Common
Stock are traded or, if not listed or traded on any such exchange or
system, the fair market value as reasonably determined by the Board of
Directors of the Company or any committee of such Board.
(g) Definition of Common Stock. Unless the context requires
otherwise, all references to Common Stock and Warrant Shares in this
Warrant Agreement and in the Warrant Certificates shall, in the
event of an adjustment pursuant to this Section 13, be deemed to
refer also to any other securities or property then issuable upon
exercise of the Warrants as a result of such adjustment. In the
event that at any time, as a result of an adjustment made pursuant
to this Section 13, securities other than shares of Common Stock are
issuable upon exercise of the Warrants, thereafter the number of
such other shares so issuable shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock
contained in this Section 13, and all other provisions of this
Warrant Agreement with respect to Common Stock shall apply on like
terms to any such other shares.
(h) Threshold Requirement. No adjustment in the Exercise Price
or in the number of Warrant Shares purchasable hereunder shall be
required unless such adjustment would require an increase or
decrease of at least one percent (1%) in such Exercise Price or in
the number of Warrant Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of
this Section 13(g) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 13 shall be made to the nearest cent
and to the nearest one-thousandth of a Warrant Share, as the case
may be.
(i) Voluntary Adjustment by the Company. The Company may at its
option, at any time during the term of the Warrants, reduce the then
current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company or
extend the Expiration Date of the Warrants.
SECTION 14. Officer's Certificate. Whenever the number of Warrant
Shares that may be purchased upon exercise of the Warrants is adjusted as
required by the provisions of this Warrant Agreement, the Company will
forthwith file in the custody of its Secretary or an Assistant Secretary at
its principal office and with the Warrant Agent an officer's certificate
showing the adjusted number of Warrant Shares that may be purchased upon
exercise of the Warrants and the adjusted Exercise Price, determined as
herein provided, setting forth in reasonable detail the facts requiring
such adjustments and the manner of computing such adjustment. Each such
officer's certificate shall be made available at all reasonable times for
inspection by the holder.
SECTION 15. Notice of Certain Events. Upon any adjustment of the
Exercise Price pursuant to Section 13, the Company shall promptly, but in
any event within 20 days thereafter, cause to be mailed to the registered
holders of the Warrants, a certificate setting forth the Exercise Price
as so adjusted and the number of shares of Common Stock issuable upon the
exercise of each Warrant as so adjusted and describing in reasonable
detail the facts accounting for such adjustment and the method of
calculation used. Where appropriate, such certificate may be given in
advance and included as part of the notice required to be mailed under
the other provisions of this Section 15.
At any time during the period commencing on the date of this Warrant
Agreement and ending on the Expiration Date, in the event:
(a) the Company authorizes the issuance of rights or warrants
to subscribe for or purchase shares of Common Stock or any other
subscription rights or warrants to all holders of Common Stock; or
(b) there shall be an adjustment to the Warrants pursuant to
Section 13(b) or 13(d) herein;
(c) of the voluntary or involuntary dissolution, partial
dissolution, liquidation or winding-up of the Company;
then the Company will cause to be mailed to the registered holders of the
Warrants, at least 20 days before the applicable record or effective date
hereinafter specified, a notice stating (A) the date as of which the
holders of Common Stock of record entitled to receive any such rights,
warrants or distributions are to be determined or (B) the date on which
any such consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding-up is expected to become effective, and (C) the
date as of which it is expected that holders of Common Stock of record
will be entitled to exchange their shares of Common Stock for securities
or other property, if any, deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding-up.
Notwithstanding the foregoing, failure to give notice as required by
this Warrant Agreement, shall not affect the validity of the underlying
corporate action taken.
SECTION 16. Listing on Securities Exchanges; Reservation of Shares.
(a) The Company will use its best efforts to cause all shares of the
Common Stock from time to time issuable upon the exercise of the Warrants
to be listed on the New York Stock Exchange, and will maintain such
listing so long as any other shares of Common Stock are so listed; and
the Company shall so list on a national securities exchange or The Nasdaq
Stock Market, or such other over-the-counter quotation system, and shall
maintain such listing of, any other shares of capital stock of the
Company issuable upon the exercise of the Warrants if and so long as any
shares of capital stock of the same class are listed on such national
securities exchange or are traded on The Nasdaq Stock Market or such
over-the-counter quotation system. Any such listing or quotation will be
at the Company's expense.
(b) The Company will use its best efforts to cause the Warrants to
be listed on a national securities exchange or The Nasdaq Stock Market,
or such other over-the-counter quotation system on which any Common Stock
may at any time be listed. Any such listing or quotation will be at the
Company's expense.
(c) For the purpose of enabling it to satisfy any obligation to
issue Warrant Shares upon the exercise of Warrants, the Company covenants
and agrees that it shall, at all times through the Expiration Date,
reserve and keep available, or cause to be reserved and available, free
from preemptive rights a sufficient number of shares of authorized but
unissued Common Stock, the number of Warrant Shares or other securities
deliverable upon the exercise of all outstanding Warrants, and the
Transfer Agent for the Common Stock hereby is irrevocably authorized and
directed at all times to reserve such number of authorized and unissued
shares of Common Stock or such other securities as shall be required for
such purpose.
(d) The Company covenants and agrees that it shall take all such
action as may be necessary too ensure that all Warrant Shares will at the
time of delivery of certificates for such Warrant Shares (subject to
payment of the Exercise Price) be duly and validly authorized and issued
and fully paid and nonassessable shares, free from any preemptive rights
and taxes, liens, charges and security interests created by or imposed
upon the Company.
SECTION 17. Availability of Information. The Company shall comply
with all applicable public information reporting requirements of the SEC
to which it may from time to time be subject.
SECTION 18. Duties of Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Warrant Agreement upon the
following terms and conditions, by all of which the Company and the
holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any
of the same except such as describe the Warrant Agent or action
taken or to be taken by it. The Warrant Agent assumes no
responsibility with respect to the delivery of Warrant Certificates
except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Warrant Agreement or in the Warrant Certificates to be complied with
by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel, provided
the Warrant Agent shall have exercised reasonable care in the
selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant for
any action taken in good faith reliance on any notice, resolution,
waiver, consent, order, certificate or other paper, document or
instrument believed by it to be genuine and to have been signed,
sent or presented by the party or parties.
(e) The Company agrees (i) to pay to the Warrant Agent
reasonable compensation for all services rendered by the Warrant
Agent in the execution of this Warrant Agreement, (ii) to reimburse
the Warrant Agent for all expenses, taxes and governmental charges
and other charges of any kind and nature incurred by the Warrant
Agent in the execution of this Warrant Agreement (other than taxes
measured by the Warrant Agent's net income), and (iii) upon request,
to advance to the Warrant Agent funds to pay cash in lieu of
fractional shares of Common Stock issuable upon exercise of Warrants.
(f) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more
registered holders of Warrants shall furnish the Warrant Agent with
reasonable security and indemnity for any costs and expenses which
may be incurred. All rights of action under this Warrant Agreement
or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and any
recovery of judgment shall be for the ratable benefit of the
registered holders of the Warrants, as their respective rights or
interest may appear.
(g) The Warrant Agent and any stockholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as
fully and freely as though it were not the Warrant Agent under this
Warrant Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other
legal entity.
The Warrant Agent shall act hereunder solely as agent, and its
duties shall be determined solely by the provisions hereof. The Warrant
Agent shall not be liable for anything which it may do or refrain from
doing in connection with this Warrant Agreement except for its own
negligence, bad faith or willful misconduct.
SECTION 19. Merger, Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent may be merged or with
which it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Warrant Agent shall be a party,
orany corporation succeeding to the corporate trust business of the
Warrant Agent, shall be the successor to the Warrant Agent hereunder
without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor warrant agent under the
provisions of Section 20 hereof. If at the time such successor to the
Warrant Agent shall succeed to the agency created by this Warrant
Agreement, and if at that time any of the Warrant Certificates shall have
been countersigned but not delivered, any such successor to the
Warrant Agent may adopt the countersignature of the predecessor warrant
agent and deliver such Warrant Certificates so countersigned; and if at
that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such
Warrant Certificates either in the name of the predecessor Warrant Agent
or in the name of the successor Warrant Agent; and in all such cases such
Warrant Certificates shall have the full force and effect provided in the
Warrant Certificates and in this Warrant Agreement.
If at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersign under its
prior name and deliver Warrant Certificates so countersigned; and if at
that time any of the Warrant Certificates shall not have been
countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all
such cases such Warrant Certificates shall have the full force and effect
provided in the Warrant Certificates and in this Warrant Agreement.
SECTION 20. Change of Warrant Agent. The Warrant Agent may resign
and be discharged from its duties under this Warrant Agreement by giving
to the Company notice in writing, and to the holders of the Warrants
notice in writing and sent, postage prepaid, by first class mail to each
registered holder of a Warrant at such holder's address appearing in the
Warrant Register, specifying a date when such resignation shall take
effect, which notice shall be sent at least two weeks prior to the date
so specified. If the Warrant Agent shall resign or otherwise become
incapable of acting, the Company shall appoint a successor to the Warrant
Agent. If the Company shall fail to make such appointment within a period
of 30 days after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the
registered holder of a Warrant (who shall, with such notice, submit such
holder's Warrant Certificate for inspection by the Company), then the
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent.
Notwithstanding any provision to the contrary contained herein, the
removal or resignation of the Warrant Agent will be effective upon the
expiration of the applicable notice period, and in the event a successor
has not then been appointed, the Company shall assume the role of Warrant
Agent until such time as a successor Warrant Agent has been appointed in
accordance with the terms of this Agreement. Any successor Warrant Agent
shall be (a) a corporation organized and doing business under the laws of
the United States or of any state thereof, in good standing, which is
authorized under such laws to exercise corporate trust or stock transfer
powers and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Warrant Agent a
combined capital surplus of at least twenty million dollars ($20,000,000)
or (b) an affiliate of a corporation described in clause (a) of this
sentence. The Company shall cause written notice to be delivered to the
registered holders of Warrants notifying such holders of the name and
address of any successor Warrant Agent. After appointment the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent
without further act or deed; but the former Warrant Agent shall deliver
and transfer to the successor Warrant Agent any property at the time held
by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to give any
notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor Warrant Agent,
as the case may be.
SECTION 21. Identity of Transfer Agent. Forthwith upon the
appointment after the date hereof of any subsequent Transfer Agent for
shares of the Common Stock, the Company will file with the Warrant Agent
a statement setting forth the name and address of such Transfer Agent.
SECTION 22. Successors. All covenants and provisions of this Warrant
Agreement by or for the benefit of the Company, the Warrant Agent or the
holders of the Warrants shall bind and inure to the benefit of their
respective successors, assigns, heirs and personal representatives.
SECTION 23. Termination. This Warrant Agreement shall terminate at
5:00 p.m., Central Standard time, on the Expiration Date or such earlier
date upon which all Warrants have been exercised or redeemed, except that
the Warrant Agent shall account to the Company for all cash held by it at
5:00 p.m., Central Standard time, on such Expiration Date.
SECTION 24. Governing Law. This Warrant Agreement and each warrant
certificate shall be governed by and construed in accordance with the
laws of the State of Kansas. The Company irrevocably agrees that all
actions or proceedings in any way, manner or respect, arising out of or
from or related to this Warrant Agreement shall be litigated in courts
having situs within the City of St. Louis, State of Kansas.
SECTION 24. Counterparts. This Warrant Agreement may be executed in
any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same agreement.
SECTION 25. Headings. The headings of sections of this Warrant
Agreement have been inserted for convenience of reference only, are not
to be considered a part hereof and shall in no way modify or restrict any
of the terms or provisions hereof.
SECTION 26. Amendments. This Warrant Agreement may be amended by the
written consent of the Company and the affirmative vote or the written
consent of holders holding not less than two-thirds in interest of the
then outstanding Warrants; provided, however, that, except as expressly
provided herein, this Warrant Agreement may not be amended to change (a)
the Exercise Price, (b) the period during which the Warrants may be
exercised, (c) the number or type of securities to be issued upon the
exercise of the Warrants, or (d) the provisions of this Section 26,
without the consent of each holder of the Warrants.
SECTION 27. Notices. Any notice pursuant to this Warrant Agreement
to be given by the Warrant Agent or by the registered holder of any
Warrant to the Company shall be given in writing and shall be deemed
effectively given upon personal delivery to the Company or upon deposit
with the United States Post Office, postage prepaid, registered or
certified mail with return receipt requested and addressed (until another
address is filed in writing by the Company with the Warrant Agent) as
follows:
AmVestors Financial Corporation
000 X.X. Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, President
Any notice pursuant to this Warrant Agreement to be given by the Company
or by the registered holder of any Warrant to the Warrant Agent shall be
given in writing and shall be deemed effectively given upon personal
delivery to the Company or upon deposit with the United States Post
Office, postage prepaid, registered or certified mail with return receipt
requested and addressed (until another address is filed in writing by the
Warrant Agent with the Company or notice of the address of a successor
Warrant Agent is given pursuant to this Warrant Agreement) as follows:
Boatmen's Trust Company
Corporate Trust Division
000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Attention: H.E. Bradford
SECTION 28. Benefits of This Warrant Agreement. Nothing in this
Warrant Agreement shall be construed to give to any person or
corporation, other than the Company, the Warrant Agent and the registered
holders of the Warrants, any legal or equitable right, remedy or claim
under this Warrant Agreement; but this Warrant Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the
registered holders of the Warrants.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed as of the first date written above.
AMVESTORS FINANCIAL CORPORATION
By:
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Name:
Title:
Attest:
By:
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Name:
Title:
BOATMEN'S TRUST COMPANY
By:
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Name:
Title:
Attest:
By:
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Name:
Title:
