STOCK PURCHASE AND SALE AGREEMENT
Exhibit
10.2
This
STOCK
PURCHASE AND SALE
AGREEMENT (the“Agreement”), is made and entered into
as of the 29th day of August, 2007, by and between the TRUSTEE OF
THE AMERICAN EQUITY INVESTMENT EMPLOYEE STOCK OWNERSHIP
TRUST (the “Buyer”) and NOBLE ENTERPRISES,
L.P. (referred to as
“Seller”). AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY (the “Company”) is a party to this
Agreement only with respect to the representations made in Articles IV and
V and
the indemnification provision in Section 7.2.
RECITALS
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A.
|
Seller
wishes to sell 410,000 shares of the Company, (the “Subject
Stock”), to the Buyer.
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B.
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Simultaneously
to this Agreement, a similar agreement is being made and entered
into by
and between the Buyer and Xxxxx X. Xxxxx whereby Xxxxx X. Xxxxx is
selling
240,000 shares of common stock of the Company to the
Buyer.
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|
C.
|
Buyer
will own approximately 1.4% of the Company immediately after the
purchase
of the Subject Stock and the simultaneous purchase of shares from
Xxxxx X.
Xxxxx.
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D.
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Buyer
has determined to purchase and acquire the Subject Stock from Seller,
and
Seller is willing to sell the Subject Stock to Buyer upon the terms
and
conditions hereinafter set forth.
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E.
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The
Company desires to facilitate the sale and purchase of the Subject
Stock
for various corporate purposes.
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AGREEMENT
NOW,
THEREFORE, in
consideration of the purchase and sale of the Subject Stock and of the premises
and the mutual promises, covenants and conditions hereinafter set forth, the
parties hereby agree as follows:
ARTICLE
I
PURCHASE
AND SALE
1.1
–
Purchase
and Sale of Subject
Stock. On the terms and subject to the conditions set forth in
this Agreement, Seller agrees to sell and convey to Buyer, and Buyer agrees
to
purchase, on the Closing Date, the Subject Stock for a per share price equal
to
the average of the closing price of the Company stock for the ten trading days
prior to the Closing Date (the “Purchase
Price”). The Buyer agrees to purchase the Subject Shares for
the purpose of holding the Subject Shares under the ESOP for the exclusive
benefit of participants and their beneficiaries, in accordance with the purposes
stated in the ESOP.
1.2
–
Payment. The
Buyer will pay the Purchase Price by delivering cash by wire transfer to an
account maintained by the Seller. No commission shall be charged to any party
with respect to the transactions contemplated by this Agreement.
ARTICLE
II
CLOSING
2.1
–
Closing. The
closing (the “Closing”) hereunder shall be held at 11:00 a.m.
on August 29, 2007, at the offices of American Equity Investment Life Holding
Company, 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxx Xxxxxx, XX 00000, or at
such
other date, time, and place (or places) as may be agreed to by the parties
hereunder. (The date upon which the Closing is held in accordance
with the terms of this section is referred to as the “Closing
Date” throughout this Agreement.)
2.2
–
Deliveries
by Buyer at
Closing. At the Closing, Buyer shall deliver the Purchase Price
for the Subject Stock, paid in the form as set forth in Section 1.2
hereof.
2.3
–
Deliveries
by Seller at
Closing. At or before the Closing, Seller shall deliver the
following:
(a) Stock
certificates representing the Subject Stock endorsed or accompanied by separate
assignments to Buyer;
(b) All
other items or documents necessary or appropriate hereunder.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLER
As
an inducement to Buyer to enter into
this Agreement and purchase the Subject Stock hereunder, Seller hereby
represents and warrants to Buyer that the following statements are true and
correct as of the date of this Agreement. When used in this Article,
“Knowledge” means actual knowledge after reasonable
investigation and knowledge that could have been obtained through reasonable
inquiry.
3.1
–
Seller. Seller
has full power and authority to sell the Subject Stock and to enter into this
Agreement and to carry out the transactions contemplated hereby. This
Agreement constitutes a valid and binding obligation of Seller enforceable
in
accordance with its terms.
3.2
–
Ownership
and
Title. Seller is the owner of the Subject Stock, free and clear
of all claims, liens and encumbrances whatsoever. At the Closing
hereunder, Seller will convey to Buyer good and marketable title to the Subject
Stock, free and clear of all liens and encumbrances whatsoever, and upon said
conveyance Buyer will have good and marketable title to the Subject Stock,
free
and clear of all claims, liens and encumbrances whatsoever.
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3.3
–
No
Options or
Warrants. There are no outstanding options, warrants, rights or
privileges, preemptive or contractual, granted by Seller to acquire any of
the
Subject Stock.
3.4
–
No
Violation. This Agreement and the transactions contemplated
hereby will not result in violation of any of the terms and provisions of any
indenture or other agreement to which Seller may be a party, or by which Seller
may be bound, or to which either Seller may be subject.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
IN
ITS CAPACITY AS PLAN SPONSOR
The
Company, in its capacity as the
sponsoring employer of the Plan, represents and warrants to the Buyer
that:
4.1
–
Organization,
Qualification, Authority, Approval. The Company
intends the ESOP to be a qualified plan and tax exempt trust within the meaning
of Sections 401(a) and 501(a) of the Code; and has all requisite power and
authority to carry out the purposes and conduct the affairs for which it was
created, and to own its assets. The Plan is intended to be a
qualified employee stock ownership plan within the meaning of Code Section
4975(e)(7), and complies in all material respects with all applicable
requirements of the Code and ERISA. The Company has or will file the
Plan with the Internal Revenue Service for a favorable determination letter
not
later than the applicable remedial amendment period for the Plan.
4.2
–
Appointment and Authority of the
Trustee. The Board of Directors, or its duly authorized delegate, on behalf
of the Company, has duly appointed Xxxxxx Trust, N.A. as Trustee for the Plan
(the “Trustee”). The Plan provides the Trustee with
full power and authority to enter into, execute and deliver this Agreement
on
behalf of the Buyer.
4.3
–
Requisite Action. The Company's execution, delivery and
performance of this Agreement and all transactions contemplated hereby have
been
duly and validly authorized and approved by all necessary action on the part
of
the Company.
4.4
–
Investigation. The Company has given Buyer access to the
business records and documents of the Company and has permitted the Buyer to
make such investigations of the Company as they have requested. Notwithstanding
the Buyer’s investigation, the Company acknowledges that Buyer is relying, in
entering into and consummating this Agreement and the transactions contemplated
hereby, only upon the representations and warranties contained in this Agreement
and the Company's financial statements, schedules, memoranda, certificates
and
other documents furnished or otherwise made available to the Buyer by the
Company or public disclosure.
4.5
–
Purchase of Shares. To the knowledge of the Company, the
Trustee is acquiring the Shares pursuant to the terms and conditions of the
Plan, solely for the benefit of the Plan participants and their beneficiaries,
for investment and not with a view to the resale thereof.
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4.6
–
Absence of Litigation. No action, suit or proceeding before
any court or governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened on or before the Closing Date.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF BUYER AND COMPANY
5.1
- Buyer’s
Representations. As an inducement to Seller to enter into this
Agreement and sell the Subject Stock hereunder, Buyer hereby represents and
warrants to Seller that the following statements are true and correct as of
the
date of this Agreement: The Buyer is the duly appointed Trustee of
the American Equity Investment Employee Stock Ownership Trust (the
“Trust”), which was created by the Company to hold assets of
the American Equity Investment Employee Stock Ownership Plan. The
Trust is a validly created and existing trust under the laws of the State of
Iowa. This Agreement is binding upon and enforceable against Buyer in
accordance with its terms. The Buyer has full power and authority to
purchase the Subject Stock and to enter into this Agreement in its capacity
as
Trustee of the Trust. Proper action has been taken by the Buyer to
authorize the execution of this Agreement and of any and all agreements or
instruments necessary to effectuate the transactions contemplated
hereby.
5.2
–
Company
Representations. As an inducement to Buyer to enter into this
Agreement and purchase Subject Stock hereunder, the Company hereby warrants
and
represents to Buyer that the following statements are true and correct as of
the
date of this Agreement: During the three (3) years prior to the date
hereof, the Company has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
“1934 Act”) (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements, notes and
schedules thereto and documents incorporated by reference therein being
hereinafter referred to as the “SEC Documents”). All of such
SEC Documents are available on the XXXXX system and on the Company’s
website. As of their respective dates, the SEC Documents complied in
all material respects with the requirements of the 1934 Act and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial statements of
the Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have
been
prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in
all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the Company
to
the Buyer which is not included in the SEC Documents, contains any untrue
statement of a material fact or omits to state any material fact necessary
in
order to make the statements therein, in light of the circumstance under which
they are or were made, not misleading. The Company is in compliance
with any and all applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002
that
are effective as of the date hereof, and any and all applicable rules and
regulations promulgated by the SEC thereunder that are effective as of the
date
hereof, except where such noncompliance would not have, individually or in
the
aggregate, a material adverse effect.
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ARTICLE
VI
CONDITIONS PRECEDENT
OF BUYER
The
obligations of Buyer hereunder are
subject to the condition that, on or before the Closing Date:
6.1
–
Injunction. On
the Closing Date, there shall be no effective injunction, writ, preliminary
restraining order or any order of any nature issued by a court of competent
jurisdiction directing that the transactions provided for herein or any of
them
not be consummated as herein provided.
6.2
–
Deliveries. The
Seller shall have delivered to Buyer all deliveries required or appropriate
hereunder.
6.3
–
Approval
of
Documents. The form and substance of all certificates,
instruments, opinions and other documents delivered to the Buyer under this
Agreement shall be satisfactory in all reasonable respects to the
Buyer.
ARTICLE
VII
INDEMNITIES
7.1
–
Seller’s Indemnity. The Seller, for himself and his successors
and assigns, agrees to indemnify, defend and hold the Buyer harmless against
and
in respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorneys' fees, that the Buyer shall incur or suffer, which
arise, result from or relate to any breach of, or failure by the Seller to
perform any of his representations, warranties, covenants or agreements in
this
Agreement.
7.2
–
Company’s Indemnity. The Company agrees to indemnify and hold
the Buyer harmless against, and in respect of, any and all claims, losses,
expenses, costs, obligations and liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorneys' fees,
that
the Buyer shall incur or suffer, which arise, result from or relate to any
breach of or failure by the Company in its capacity as Plan Sponsor or
otherwise, to perform any of its warranties, guaranties, representations,
commitments or covenants in this Agreement.
7.3
–
Trustee’s Indemnities. Subject to the terms of the Plan, the
Trustee agrees to indemnify and hold the Company, the Plan and the Seller
harmless against, and in respect of, any and all claims, losses, expenses,
costs, obligations and liabilities any of the them may incur by reason of the
Trustee’s breach of or failure to perform any of the Trustee’s warranties,
guaranties, representations, commitments or covenants in this Agreement,
provided that Trustee’s breach or failure to perform is based on the Trustee’s
(i) negligence; or (ii) willful misconduct.
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ARTICLE
VIII
MISCELLANEOUS
8.1
–
Expenses. The
Company shall pay all expenses in connection with this Agreement and the
transaction contemplated hereby.
8.2
–
Brokers. Each
of the parties represents to the other that no broker or other person is
entitled to any fee or commission in connection with the negotiation or
consummation of the transactions contemplated hereby, except the fees of
attorneys and/or accountants for the respective parties.
8.3
–
Entire
Agreement. This Agreement contains the entire agreement among the
parties, superseding in all respects any prior oral or written agreements or
understandings pertaining to the subject matter hereof and transactions
contemplated hereby and shall be amended or modified only by written instrument
signed by all of the parties hereto.
8.4
–
Waiver. No
waiver by any party of any condition, or of the breach of any term, covenant,
representation or warranty contained in this Agreement or in the agreements
and
documents executed in connection herewith, whether by conduct or otherwise,
in
any one or more instances shall be deemed to be or construed as a further and
continuing waiver of any such condition or breach or a waiver of any other
condition or breach of any other term, covenant, representation, or warranty
of
this Agreement, or the agreements and documents executed in connection
herewith.
8.5
–
Binding
Effect;
Assignment. This Agreement and the agreements and documents
executed in connection herewith shall be binding upon and shall inure to the
benefit of and be enforceable by the parties hereto and their respective heirs,
successors and assigns.
8.6
–
Notices. Any
notice or other communication required or permitted to be given or served upon
any of the parties under this Agreement shall be sufficiently delivered, given
or served if delivered personally to such person or if sent to such party by
registered or certified mail postage prepaid, addressed to such party as set
forth below or such other address as such party shall designate by giving
written notice to the other parties, as follows:
In
case of
notice to Buyer:
Xxxxx
Xxxxx
Xxxxxx
Trust, N.A.
000
Xx.
Xxxxx Xxxxxx
Xx.
Xxxx,
XX 00000-0000
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In
case of notice to
Seller:
Noble
Enterprises, L.P.
0000
Xxxx
xx Xxxxxx Xxxxx, #000
Xxxxxxxx
Xxx, XX 00000
8.7
–
General. This
Agreement may be executed in several counterparts, each of which will be deemed
to be an original copy of this Agreement and all of which, when taken together,
will be deemed to constitute one and the same Agreement. The section
headings contained herein are for reference purposes only and shall not in
any
way affect the meaning or interpretation of this Agreement. This
Agreement and the rights of the parties shall be governed, enforced and
construed under the laws of the State of Iowa without giving effect to any
choice or conflicts of law doctrine which otherwise might be
applicable.
IN
WITNESS WHEREOF, the parties have
duly executed this Agreement as of the date and year first written
above.
BUYER:
XXXXXX
TRUST, N.A.,
in
its
capacity as Trustee of the
American
Equity Investment Employee Stock Ownership Trust
By: /s/
Xxxxx
Xxxxx
Its: Senior
Vice President
COMPANY:
By: /s/
Xxxxx X.
Xxxxxxxxxx
Its: Senior
Vice President & Secretary
SELLER:
NOBLE
ENTERPRISES, L.P.
By: /s/
Xxxxx X.
Xxxxx
Its: General
Partner
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