Exhibit 4.10
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XXXXXXX, XXXXX & CO.,
as Call Option Holder
AND
FIRST UNION NATIONAL BANK,
as Unit Agent and as Attorney-In-Fact
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CALL OPTION AGREEMENT
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Dated as of July 27, 1998
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CALL OPTION AGREEMENT
CALL OPTION AGREEMENT, dated as of July 27, 1998,
between Xxxxxxx, Sachs & Co., as Call Option Holder, and
First Union National Bank, as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Normal Units.
RECITALS
AmerUs Life Holdings, Inc. and the Unit Agent are
parties to the Master Unit Agreement, dated as the date
hereof (as the same may be supplemented or amended in
accordance with the terms thereof, the "Master Unit
Agreement"). The Master Unit Agreement contemplates that
the Company will issue QUIPS-SM-* and Junior Subordinated
Debentures, and that QUIPS or Junior Subordinated Debentures
will underlie Normal Units outstanding from time to time
thereunder.
It is intended that the Holders from time to time
of the Normal Units grant Call Options entitling the Call
Option Holder to acquire the QUIPS or Junior Subordinated
Debentures underlying the related Normal Units on the terms
and subject to the conditions set forth herein. Pursuant to
the terms of the Principal Agreements and the Unit
Certificates for the Normal Units, the Holders from time to
time of the Normal Units irrevocably authorize the Unit
Agent, as attorney-in-fact of such Holders, to enter into
such Call Options and execute and deliver this Agreement on
behalf of such Holders.
Accordingly, the Call Option Holder and the Unit
Agent, on its own behalf and as attorney-in-fact of the
Holders from time to time of the Normal Units, agree as
follows:
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* QUIPS is a servicemark of Xxxxxxx, Xxxxx & Co.
ARTICLE ONE
Definitions
Section 1. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(a) capitalized terms used herein and not defined
are used herein as defined in the Master Unit
Agreement; and
(b) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Aggregate Call Option Exercise Consideration"
means consideration comprised of:
(a) Treasury Securities that through their
scheduled payments will generate by each
Quarterly Payment Date falling after the Call
Settlement Date and on or before the Stock
Purchase Date an amount of cash equal to the
aggregate distributions or interest payments
that are scheduled to be payable in respect
of the QUIPS or Junior Subordinated
Debentures underlying the Normal Units on
such Quarterly Payment Date (assuming for
this purpose, even if not true, that (i) no
distributions or interest payments will then
have been deferred and (ii) that the rate of
distribution on the QUIPS and the rate of
interest on the Junior Subordinated
Debentures remains at 6.86%);
(b) Treasury Securities that through their
scheduled payments will generate by the Stock
Purchase Date an amount of cash equal to the
aggregate Stated Amount of the Normal Units;
and
(c) if the Company is, at the Call Settlement
Date, deferring distributions on the QUIPS or
interest payments on the Junior Subordinated
Debentures, an amount in cash equal to (i)
the aggregate unpaid distributions on the
QUIPS or interest payments on the Junior
Subordinated Debentures underlying the Normal
Units accrued to the Call Settlement Date, if
the Call Settlement Date is a Quarterly
Payment Date, or (ii) the aggregate unpaid
distributions on the QUIPS or interest
payments on the Junior Subordinated
Debentures underlying the Normal Units
accrued to the Quarterly Payment Date
immediately preceding the Call Settlement
Date plus interest thereon at the Deferral
Rate for the period from and including such
Quarterly Payment Date to but excluding such
Call Settlement Date (computed on the basis
of a 360-day year of twelve 30-day months),
if the Call Settlement Date is not a
Quarterly Payment Date.
"Call Option Expiration Date" means April 27, 2001
(or, if such date is not a Business Day, the next
succeeding Business Day).
ARTICLE TWO
Call Option
Section 2.1 Grant. The Unit Agent, on behalf of
and as attorney-in-fact for the Holders from time to time of
the Normal Units, hereby grants the Call Options to the Call
Option Holder on the terms and subject to the conditions set
forth herein.
Section 2.2 Consideration. As consideration for
such Call Options, concurrently with the execution hereof,
the Call Option Holder is paying to the underwriters under
the Underwriting Agreement (who are acting in this regard on
behalf of the initial investors in the Normal Units) an
amount equal to $0.1136 per Call Option.
Section 2.3 Expiration or Termination of Call
Options. The Call Options shall be irrevocable, but the
Call Options and the rights of the Call Option Holder and
the obligations of the Holders of Normal Units thereunder
shall (a) expire on the Call Option Expiration Date if the
Call Settlement Date has not occurred on or prior to such
date and (b) automatically terminate upon the occurrence of
a Termination Event.
ARTICLE THREE
Exercise of Call Options
Section 3.1 Exercise Mechanics.
(a) The Call Option Holder may exercise all (but
not less than all) the Call Options by (i) delivering to the
Unit Agent and the Collateral Agent, on or prior to the Call
Option Expiration Date, a notice, substantially in the form
set forth in Annex A attached hereto, stating that the Call
Option Holder is exercising its Call Options and specifying
the Call Settlement Date therefor (which must be a Business
Day falling on or before the Call Option Expiration Date)
and (ii) delivering to the Collateral Agent, by Noon, New
York City time, on the Call Settlement Date, the Aggregate
Call Option Exercise Consideration.
(b) Pursuant to the Pledge Agreement, upon
receipt by the Collateral Agent of the Aggregate Call Option
Exercise Consideration in the manner contemplated hereby and
by the Pledge Agreement, the Collateral Agent shall release
the QUIPS or Junior Subordinated Debentures underlying the
Normal Units, free and clear of any lien, pledge or security
interest created by the Pledge Agreement, and transfer such
released QUIPS or Junior Subordinated Debentures to the Call
Option Holder or its designee as specified in the notice
referred to in Section 3.1(a) above.
(c) The Unit Agent shall, not later than three
Business Days following the Call Settlement Date, mail
notice of the exercise of the Call Options to the Holders of
Normal Units in the manner prescribed by the Master Unit
Agreement.
ARTICLE FOUR
Miscellaneous
4.1 Amendments. This Agreement may be amended in the
manner set forth in Section 801 of the Master Unit Agreement
with respect to supplemental agreements.
4.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF. The Call Option Holder, the Unit Agent and the
Holders from time to time of the Normal Units, acting
through the Unit Agent as their attorney-in-fact, hereby
submit to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of
any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby.
The Call Option Holder, the Unit Agent and the Holders from
time to time of the Normal Units, acting through the Unit
Agent as their attorney-in-fact, irrevocably waive, to the
fullest extent permitted by applicable law, any objection
which they may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
4.3 Notices. All notices, requests, consents and
other communications provided for herein (including, without
limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to
the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof or,
as to any party, at such other address as shall be
designated by such party in a notice to the other party.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
4.4 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective
successors and assigns of the Call Option Holder and the
Unit Agent, and the Holders from time to time of the Normal
Units, by their acceptance of the same, shall be deemed to
have agreed to be bound by the provisions hereof and to have
ratified the agreements of, and the grant of the Call
Options hereunder by, the Unit Agent.
4.5 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together
shall constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any
such counterpart.
4.6 Severability. If any provision hereof is invalid
or unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (a) the other provisions hereof
shall remain in full force and effect in such jurisdiction
and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be
possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first
above written.
XXXXXXX, XXXXX & CO.,
as Call Option Holder
/s/ Xxxxxxx, Sachs & Co.
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(Xxxxxxx, Xxxxx & Co.)
Address for Notices:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
FIRST UNION NATIONAL BANK,
as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Normal Units
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notices:
000 Xxxxx Xxxxx Xx., 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Trust and
Administration
ANNEX A
EXERCISE NOTICE
Reference is made to the Call Option Agreement,
dated as of July 27, 1998 (the "Call Option Agreement"),
between Xxxxxxx, Xxxxx & Co., as Call Option Holder, and
First Union National Bank, as Unit Agent and attorney-in-fact of the
Holders from time to time of the Normal Units.
Capitalized terms used herein but not defined are used
herein as defined in the Call Option Agreement.
The undersigned hereby exercises all of the Call
Options underlying the Normal Units and specifies ------------- as the Call
Settlement Date. Certificates representing
the QUIPS or Junior Subordinated Debentures underlying the
Normal Units should be registered in the name of ------------------- and
delivered to [insert address].
XXXXXXX, SACHS & CO.,
As Call Option Holder
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(Xxxxxxx, Xxxxx & Co.)
Date: ---------------------------------------------
