AGREEMENT OF SALE
THIS AGREEMENT OF SALE is made and entered into this 22 day of October,
1997, by and between R. Xxx Xxx, M.D. ("Seller") and AmerUs Group Co., an
Iowa corporation ("Buyer").
WITNESSETH
WHEREAS, Seller desires to sell and Buyer desires to purchase all of
Seller's rights, title and interest in 63,675 shares of common stock, no par
value ("Common Stock") of AmVestors Financial Corporation, a Kansas
corporation ("AmVestors") held by Seller (individually a "Share,"
collectively the "Shares").
NOW, THEREFORE, in consideration of the above premises, the mutual
covenants and agreements states herein, the Purchase Price (as defined below)
paid by Buyer to Seller, and other good valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. SALE OF SHARES. Seller does hereby irrevocably sell, assign,
transfer and deliver unto Buyer, its successors and assigns, all of Seller's
right, title, and interest in and to the Shares.
2. PURCHASE PRICE. Buyer hereby agrees to pay to Seller this day, in
immediately available funds, the amount equal to $20 per Share ($1,273,500.00
in the aggregate of all the Shares). In addition:
(a) Upon timely consummation of the merger pursuant to that certain
Amended and Restated Agreement and Plan of Merger dated as of
September 19, 1997, amended and restated on October 8, 1997 (the
"Merger Agreement"), by and among AmVestors, AmerUs Life
Holdings, Inc., an Iowa corporation ("AmerUs") and AFC Corp., a
Kansas corporation and wholly owned subsidiary of AmerUs, Buyer
agrees to pay Seller additional consideration equal to the
positive amount, if any, of (i) the product of (x) the Merger
Consideration (as defined in the Merger Agreement) multiplied by
the Average Parent Share Price (as defined in the Merger
Agreement) multiplied by (y) 63,675; minus (ii) $1,273,500;
provided, however, that any such payment shall be subject to
maximum of $0.625 multiplied by 63,675 (the "Maximum Amount").
(b) In the event the Merger Agreement is terminated pursuant to
Article IX of the Merger Agreement, Buyer agrees to pay Seller an
amount equal to the positive amount, if any, of (i) the product
of (x) 63,675 multiplied by (y) the closing price per share of
AmVestors Common Stock as reported on the New York Stock Exchange
on the fifth trading day following the date of the first public
announcement by Buyer of the termination; minus (ii) $1,273,500;
provided, however, that any such payment shall be subject to a
maximum of $0.625 multiplied by 63,675 (the "Maximum Amount").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller does
hereby represent, warrant and covenant to Buyer as follows:
(a) Seller is the lawful owner of the Shares and has and is hereby
transferring to Buyer good and marketable title to the Shares, free and clear of
any and all encumbrances, liens, security interests, pledges, and charges of any
kind whatsoever.
(b) Seller has the power to enter into this Agreement of Sale and to
sell, assign and transfer all of his right, title and interest in the Shares.
(c) Seller covenants and agrees that in the event the Shares cannot
be transferred or assigned without the consent of or notice to a third party,
such third party consent has preciously been obtained, or notice has been
previously given (as the case may be), by Seller.
(d) Neither the execution and delivery of this Agreement of Sale nor
compliance with the terms hereof by Seller will breach any governmental law,
statute or regulation, or conflict with or result in the breach of any of the
terms, conditions, or provisions of any agreement or instrument to which the
Seller is a party or by which it is or may be bound or result in the creation or
imposition of any encumbrance, lien, security interest, pledge or charge.
(e) This Agreement of Sale is enforceable against Seller in
accordance with its terms.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER. Buyer does
hereby represent and warrant to Seller as follows:
(a) Neither the execution and delivery of this Agreement of Sale nor
compliance with the terms hereof by the Buyer will violate the articles of
incorporation or bylaws of Buyer, will breach any governmental statute or
regulation, or conflict with or result in the breach of any of the terms,
conditions or provisions of any agreement or
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instrument to which Buyer is a party or by which it is or may be bound or
result in the creation or imposition of any encumbrance, lien, security
interest, pledge or charge.
(b) Buyer has the corporate power and authority to enter into this
Agreement of Sale and this Agreement of Sale is enforceable against Buyer in
accordance with its terms.
(c) Buyer covenants and agrees that in the event the Shares cannot be
purchased without the consent of or notice to a third party, such third party
consent has previously been obtained, or notice has been previously given (as
the case may be), by Buyer.
(d) Buyer is acquiring the Shares for its own account for investment
purposes, and not with a view to distribution thereof within the meaning of the
Securities Act of 1933, as amended (the "Securities Act").
(e) Buyer is an "Accredited Investor" as defined in the Securities
Act.
5. GENERAL.
(a) This Agreement of Sale cancels and supersedes all previous
agreements relating to the subject matter of this Agreement of Sale, written or
oral, between the parties hereto and contains the entire understanding of the
parties hereto and shall not be amended, modified or supplemented in any manner
whatsoever except in a writing signed by each of the parties hereto.
(b) This Agreement of Sale shall be binding upon, and inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns.
(c) This Agreement of Sale may be executed in any number or
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one agreement which is binding upon all the parties hereto,
notwithstanding that all parties are not signatories to the same counterpart.
(d) This Agreement of Sale and all rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Kansas applicable to agreements made
and to be performed entirely within such State, including all matters of
enforcement, validity and performance.
(e) Both parties acknowledge and agree that Seller may be deemed an
"Affiliate" of AmVestors under federal and state securities laws, that therefore
the Shares
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may be deemed restricted under Rule 144 of the Securities Act and that the
certificates for such Shares may bear an appropriate restrictive legend.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement of
Sale to be executed as of the date and year first set forth above.
R. Xxx Xxx, M.D.
/s/ R. Xxx Xxx
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AmerUs Group Co.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: General Counsel
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