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EXHIBIT 10.40
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (this "Agreement") is made and entered
into as of the 15th day of February, 1999, by ___________________________ (the
"Executive Officer") in favor of AmerUs Life Holdings, Inc. (the "Company").
WHEREAS, the Executive Officer has applied for and has obtained a
variable rate draw loan from The First National Bank of Chicago (the "Bank) in
the original principal amount of up to $_________________ for the purpose of
purchasing shares of Class A Common Stock and/or 7.00% Adjustable
Conversion-Rate Equity Security Units of the Company under the AmerUs Life
Holdings, Inc. Executive Stock Purchase Plan, which loan shall convert to a
fixed rate term loan upon the completion of the Executive Officer's purchase of
such securities under such Plan (such loan being referred to as the "Executive
Officer Loan");
WHEREAS, in order to induce the Bank to make the Executive Officer
Loan, the Company executed and delivered a Facility and Guaranty Agreement of
even date herewith by and among the Company and the Bank (the "Company
Guaranty"); and
WHEREAS, in order to induce the Company to execute and deliver the
Company Guaranty, the Executive Officer has agreed to execute and deliver this
Agreement in favor of the Company, pursuant to which the Executive Officer shall
reimburse the Company on demand for all amounts paid by the Company to the Bank
pursuant to the Company Guaranty with respect to the Executive Officer Loan;
NOW, THEREFORE, based on the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Executive Officer hereby agrees as follows:
Section 1. Absolute and Unconditional Reimbursement Obligation. The
Executive Officer hereby absolutely and unconditionally (a) agrees to reimburse
the Company fully and promptly, upon demand, for all amounts paid by the Company
to the Bank pursuant to the Company Guaranty with respect to the Executive
Officer Loan and (b) agrees to pay any and all expenses incurred by the Company
in enforcing its rights under this Agreement, including without limitation
reasonable attorneys' fees; provided, however, that the Executive Officer shall
have no obligation to reimburse the Company for any Early Payment Fee paid with
respect to the Executive Officer Loan if such Early Payment Fee is paid by the
Company as a result of the occurrence and continuance of any Program Event of
Default other than a Program Event of Default which results from any breach or
misrepresentation by the Executive Officer. This Agreement shall be a continuing
agreement, and the liability of the Executive Officer hereunder shall be
absolute and unconditional, shall be performed strictly in accordance with the
terms of this Agreement and shall not be affected, modified or diminished by
reason of: (i) any assignment, renewal, modification or extension of the
Executive Officer Loan or of the Company Guaranty; (ii) any modification,
release or waiver of or change in any of the terms, covenants, conditions or
provisions of the Executive Officer Loan or of the Company Guaranty; (iii) any
dealings or transactions occurring between the Bank and the Company, whether or
not notice thereof is given to the Executive Officer; (iv) any default or
failure of the Executive Officer fully
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to perform any of his obligations, covenants or agreements with respect to the
Executive Officer Loan or as set forth in this Agreement; (v) any substitution
of a new guaranty for the Company Guaranty; (vi) the invalidity or lack of
enforceability of the Executive Officer Loan or the Company Guaranty or any
provision of any thereof; or (vii) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Executive Officer in
respect of the Executive Officer Loan or the Executive Officer in respect of
this Agreement.
This Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of the principal of or interest on the
Executive Officer Loan is rescinded or must otherwise be returned by the Bank
upon the insolvency or bankruptcy of the Executive Officer or otherwise, all as
though such payment had not been made.
Section 2. Right to Set-Off. Upon the occurrence and during the
continuance of any Event of Default (as hereinafter defined), the Company or any
subsidiary thereof is authorized at any time and from time to time, to set off
and apply any and all amounts owing by the Company or any subsidiary thereof to
the Executive Officer (including without limitation base salary, bonuses and
performance units) against any and all of the obligations of the Executive
Officer now or hereafter existing under this Agreement, irrespective of whether
or not the Company or such subsidiary shall have made any demand under this
Agreement and although such obligations may be unmatured. The failure by the
Company to give notice of a set-off under this provision shall not effect the
validity of such set-off and application. The rights of the Company under this
Section 2 are in addition to the other rights and remedies which the Company may
have.
Section 3. Representations and Warranties. The Executive Officer
represents and warrants to the Company as follows:
(a) The Executive Officer has all right and power to enter into this
Agreement, perform his or her obligations hereunder and consummate the
transactions contemplated hereby.
(b) This Agreement constitutes a legal, valid and binding obligation of
the Executive Officer, enforceable against the Executive Officer in
accordance with its terms.
Section 4. Remedies. All of the Company's rights and remedies under
this Agreement are intended to be distinct, separate and cumulative with all
other rights and remedies of the Company and no such right or remedy is intended
to be to the exclusion of or be a waiver of any other right or remedy.
Section 5. Amendments and Waivers. No amendment of any provision of
this Agreement shall be effective unless it is in writing and signed by the
Company and the Executive Officer. No waiver of any provision of this Agreement
shall be effective unless it is in writing and signed by the Company, and any
such waiver shall be effective only in the specific instance and for the
specific purpose for which given.
Section 6. Waiver of Notice, Etc. The Executive Officer hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
this Agreement and any
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requirement that the Company protect, secure, perfect or
insure any security interest or lien or any property subject thereto or exhaust
any right or take any action against any person or entity.
Section 7. Governing Law. This Agreement and the rights and remedies
of the Company and the Executive Officer shall be governed by and construed in
accordance with the laws of the State of Iowa, without regard to principles of
conflicts of law.
Section 8. Binding Effect. This Agreement shall inure to the benefit of
the Company and its successors and assigns and shall be fully binding upon the
Executive Officer, his or her heirs, executors and legal or personal
representatives.
Section 9. Term. This Agreement shall remain in full force and effect
until all obligations under this Agreement and the Company Guaranty have been
fully performed, regardless of any invalidity or unenforceability of any
provision of this Agreement or the Company Guaranty.
Section 10. Events of Default. For purposes of this Agreement, any
breach by the Executive Officer of or default by the Executive Officer under
this Agreement or any agreement between the Executive Officer and the Bank or
any representation or warranty made by the Executive Officer to the Company or
to the Bank shall prove to have been incorrect in any material respect when made
or the occurrence of any Program Event of Default or Borrower Event of Repayment
shall be an "Event of Default" under this Agreement.
Section 12. Notices. All notices and other communications permitted or
required pursuant to this Agreement shall be in writing and shall be deemed
given when delivered in person, or when deposited in the United States mail,
postage prepaid, as certified mail, return receipt requested, properly addressed
to the party for whom intended at the addresses set forth below, or to such
other address as either party hereto may designate for itself by notice in
accordance herewith to the other:
The Company: AmerUs Life Holdings, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
The Executive Officer: _______________________ [Print Mailing
_______________________ Address]
Section 13. No Waiver. No delay or omission of the Company to exercise
any right, remedy or power shall impair the same or be construed to be a waiver
of any Event of Default or any acquiescence therein. No waiver of any Event of
Default shall extend to or affect any subsequent Event of Default, nor shall it
impair any right, remedy or power available to the Company. No single or partial
exercise of any right, remedy or power shall preclude any other or further
exercise thereof by the Company.
Section 14. Severability. Any provision of this Agreement that is
legally determined to be unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the unenforceability without
invalidating the remaining provisions hereof, but no
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unenforceability in any jurisdiction shall invalidate or render unenforceable
the same or any other provision in any other jurisdiction.
Section 15. Consent to Jurisdiction; Waiver of Jury Trial. The
Executive Officer hereby irrevocably submits to the non-exclusive jurisdiction
of any United States federal or Iowa district court sitting in Des Moines, Iowa
in any action or proceeding arising out of or relating to this Agreement, and
the Executive Officer hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in any such United States
federal or Iowa district court. The Executive Officer irrevocably waives any
objection, including without limitation any objection to the laying of venue or
based on the grounds of forum non conveniens, which he or she may now or
hereafter have to the bringing of any such action or proceeding in any such
jurisdictions. The Executive Officer irrevocably consents to the service of any
and all process in any such action or proceeding brought in any court in or of
the State of Iowa by the delivery of copies of such process to the Executive
Officer at the address specified for notices to be given to the Executive
Officer set forth in Section 12 hereof or by certified mail directed to such
address. The Executive Officer irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim arising out of or relating to this
Agreement.
Section 16. Defined Terms. Capitalized terms used in this Agreement and
not otherwise defined shall have the meanings ascribed thereto in the Company
Guaranty.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Executive Officer as of the day and year first above written.
______________________________________________
Signature of Executive Officer
Printed Name: ________________________________
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