EXHIBIT (j)
Guarantee Agreements
Assumption of AmerUs Guarantee (Agreement Regarding Share Purchases)
GUARANTEE AGREEMENT
This Guarantee Agreement dated as of the 8th day of ___________ day of
_____________, 19 _____, by Ameritas Life Insurance Corp., a Nebraska Insurance
corporation ("the Parent") and Ameritas Variable Life Insurance Company, a
Nebraska Insurance corporation ("the Subsidiary").
WHEREAS, the Parent wishes in furtherance of its corporate purposes and
in order to induce persons including policyholders to enter into transactions
with Subsidiary, to guarantee all of the duties and obligations of the
Subsidiary unless and until the conditions for terminating such Guarantee as
specifically provided herein are met.
NOW THEREFORE, in consideration of the premises and the mutual covenant
contained herein, and to induce others including policyholders of Subsidiary to
enter into and transact business with Subsidiary, Parent covenants and agrees as
follows:
Section I - The Guarantee
Parent absolutely, irrevocably, and unconditionally guarantees as
primary obligor, the full, complete, and absolute performance of all duties and
obligations of Subsidiary to the same extent and effect as if such duties and
obligations were that of the Parent. Parent hereby agrees, that if any
obligation or duty required to be performed by Subsidiary shall not be performed
by Subsidiary as or when required, that Parent shall ten days after demand by
anyone entitled to the receipt of such performance of such obligation, do or
perform such obligation including the payment of any monies to the full extent
as if the same had been a duty or obligation of Parent. Such Guarantee shall
irrevocably and unconditionally remain in full force and effect unless the
conditions more particularly set out below shall occur.
Section II - Merger Consolidation, Etc.
In the event that Parent [i] is a party to a merger or consolidation in
which the Parent shall not be the surviving corporation or [ii] shall sell all
or substantially all of its assets, the surviving corporation or the entity to
which such sale has been made as the case may be, shall upon the request of the
Parent and as a condition of such merger, consolidation, or sale, assume the
obligations of the Parent with regard to this Guarantee, and shall confirm by an
instrument in writing its assumption of the obligations and duties of the Parent
hereunder or [iii] in the event that the Subsidiary is a party to a merger or
consolidation in which the Subsidiary shall not be the surviving corporation or
[iv] shall sell all or substantially all of its assets or [v] Parent shall sell
to a third-party a majority interest in Subsidiary the surviving corporation or
the entity to which such sale of assets has been made or the entity to which
such sale of stock has been made as the case may be, shall as a condition of
such merger, consolidation, sale of assets, or sale of stock, agree to assume
the full guarantee of Parent, and Parent shall in addition remain liable upon
its Guarantee unless the surviving corporation, purchaser of assets, or
purchaser of stock shall possess a quality rating issued by a National Rating
Agency equal to or greater than Parent. If such surviving corporation or entity
who has purchased such assets or stock possesses a quality rating issued by a
National Rating Agency equal to or greater than Parent, it shall agree in
writing to assume all of the Parent's obligations under this Guarantee, and
shall file a copy of such writing with all Departments of Insurance in states in
which Subsidiary conducts business after which time, Parent's Guarantee shall
terminate and Parent shall be relieved of all responsibility thereunder. For the
purposes of this Guarantee "National Rating Agency" shall mean a rating agency
such as A.M. Best, Standard & Poor's, Moody's or such other similar rating
agency nationally recognized.
Section III - Payments of Money or Performance of Duties or Obligations
All payment of money to be made by the Guarantor hereunder, for and on
behalf of the Subsidiary, and all duties or obligations required to be performed
by Parent for and on behalf of such Subsidiary shall be paid or done and
performed n exactly the same manner and at the same times and places as required
to be performed by the Subsidiary.
Section IV - Miscellaneous
A. This Guarantee and the rights and obligations of the parties
hereunder, shall be construed and in accordance with and be governed
by the laws of the State of Nebraska;
B. In case any one or more of the provisions contained in this Guarantee
shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability or the remaining provisions
hereunder, shall not in any way be effected or impaired thereby;
C. No failure or delay in exercising any right, power, or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise thereof preclude any other or further exercise
thereof, or the exercise of any other right, power, or privilege.
Section V - Duration of Guarantee
This Guarantee is a continuing one and shall continue to apply without
regard to the former amount of indebtedness or obligation guaranteed, or former
acts, or duties guaranteed which Subsidiary may create, renew, extend, or alter
in whole or in part without notice to the Parent from time to time, and it is
hereby agreed that Subsidiary may surrender, release, exchange, or alter any
duty or obligation either, in whole or in part, without affecting the obligation
or liability of Parent on this Guarantee.
Section VI - Termination of Guarantee
This Guarantee shall continue in full force and in effect and remain
binding upon the Parent, unless one of the following acts shall occur:
A. More than fifty percent of the stock of Subsidiary shall be purchased
by another entity whose financial quality shall be officially
recognized by some form of National Rating Agency to be equal to or
greater than that of Parent. At which time after such purchaser
acknowledges in writing, its guarantee of all such duties or
obligations, and after written notice of such sale and assumption of
obligations by such purchaser have been made with all departments of
insurance in which Subsidiary shall conduct business, whereupon Parent
shall thereafter be relieved of all obligations under said Guarantee
whether such obligations occurred before or after the sale of such
stock; or
B. Said Subsidiary itself shall be recognized by some National Rating
Agency to have financial quality equal to or greater than Parent.
Parent shall thereafter, be permitted to file a written notice with
each department of insurance in which Subsidiary conducts business,
together with a copy of such rating, after which Parent shall
thereafter be discharged of all duties or obligations under said
Guarantee regardless of whether such obligations occurred before or
after Subsidiary shall have received such rating.
AMERITAS LIFE INSURANCE CORP. AMERITAS VARIABLE LIFE
INSURANCE COMPANY
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
________________________________ _____________________________
Senior Vice President- Chairman of the Board and
Investments and Treasurer Chief Executive Officer
GUARANTEE AGREEMENT
THIS GUARANTEE AGREEMENT (the "Guarantee") dated as of the ________ day of
________, 20_____, by AMAL Corporation, a Nebraska corporation ("AMAL"), for the
benefit of Ameritas Variable Life Insurance Company, a Nebraska life insurance
corporation ("AVLIC").
WHEREAS, AMAL has acquired 100% of the stock of Ameritas Variable Life Insurance
Company, a Nebraska life insurance corporation ("AVLIC"); and
WHEREAS, Ameritas Life Insurance Corp. ("▇▇▇▇") which previously owned 100% of
the stock of AVLIC, executed and delivered a Guarantee Agreement dated as of
July 8, 1991 (the "▇▇▇▇ Guarantee"), under which it guaranteed all of the duties
and obligations of AVLIC; and
WHEREAS, AMAL wishes to supplement the ▇▇▇▇ Guarantee, which will remain in full
force and effect after the date hereof, with its own guarantee of all of the
duties and obligations of AVLIC, which guarantee is executed and delivered in
furtherance of AMAL's corporate purposes and in order to induce persons
including policyholders to enter into transactions with AVLIC; and
WHEREAS, the ▇▇▇▇ Guarantee and this Guarantee shall remain in full force and
effect, respectively, until and unless the conditions specifically provided in
the ▇▇▇▇ Guarantee and/or herein for terminating such guarantees are met.
NOW THEREFORE, in consideration of the premises (including the ongoing ▇▇▇▇
Guarantee), and to induce others including policyholders of AVLIC to enter into
and transact business with AVLIC, AMAL covenants and agrees as follows:
Section I - The Guarantee
AMAL absolutely, irrevocably and unconditionally guarantees, as primary obligor,
the full, complete and absolute performance of all duties and obligations of
AVLIC to the same extent and effect as if such duties and obligations were those
of AMAL. AMAL hereby agrees that if any obligation or duty required to be
performed by AVLIC shall not be performed by AVLIC as or when required, that
AMAL shall, within ten days after demand by anyone entitled to the receipt of
performance of such obligation, do or perform such obligation including the
payment of any moneys to the full extent as if the same had been a duty or
obligation of AMAL. This Guarantee shall irrevocably and unconditionally remain
in full force and effect unless the conditions more particularly set out below
shall occur.
Section II - Merger, Consolidation, Etc.
A. In the event that AMAL:
(i) is a party to a merger or consolidation in which AMAL shall not be the
surviving corporation, or
(ii) shall sell all or substantially all of its assets, then the surviving
corporation, or the entity to which such sale has been made, as the
case may be, shall, upon the request of AMAL and as a condition of
such merger, consolidation or sale, assume the obligations of AMAL
with regard to this Guarantee, and shall confirm by an instrument in
writing its assumption of the obligations and duties of AMAL
hereunder.
B. In the event that:
(i) AVLIC is a party to a merger or consolidation in which AVLIC shall not
be the surviving corporation, or
(ii) AVLIC shall sell all or substantially all of its assets, or
(iii) AMAL shall sell or cause to be sold to a third party all of its
interest in AVLIC or, if less, a majority interest in AVLIC, then the
surviving corporation or the transferee of such assets or of such
interest, as the case may be, shall, as a condition of such
transaction, agree to assume the full guarantee of AMAL, and AMAL
shall remain liable upon its Guarantee; provided, however, that if
such surviving corporation or such transferee shall possess a quality
rating issued by a National Rating Agency (as defined below) equal to
or greater than that of ▇▇▇▇, and if such person or entity shall
guarantee in writing the duties and obligations guaranteed by AMAL
hereunder and file a copy of such writing with the department of
insurance for each state in which AVLIC then conducts business, then
this Guarantee shall terminate and AMAL shall be relieved of all
obligations under this Guarantee whether said obligations arose before
or after such termination.
C. For purposes of this Guarantee, "National Rating Agency" shall mean a
rating agency such as A.M. Best, Standard & Poor's, Moody's or such other
similar rating agency as may be nationally
Section III - Payments of Money or Performance of Duties or Obligations
Any payment of money to be made by AMAL hereunder for and on behalf of AVLIC,
and any duties or obligations required to be performed by AMAL for or on behalf
of AVLIC, shall be paid or done and performed in the same manner and at the same
times and places as required to be performed by AVLIC, subject to the demand and
10-day notice period provided in Section I hereof.
Section IV - Miscellaneous
A. This Guarantee and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the laws of the
State of Nebraska.
B. In case any one or more of the provisions contained in this Guarantee shall
be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions hereunder shall not in any
way be affected or impaired thereby;
C. No failure or delay in exercising any right, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise
thereof preclude any other or further exercise thereof, or the exercise of
any other right, power or privilege.
Section V - Duration of Guarantee
This Guarantee is a continuing one and shall continue to apply without regard to
the former amount of indebtedness or obligation guaranteed, or former acts, or
duties guaranteed, which AVLIC may create, renew, extend or alter in whole or in
part without notice to AMAL from time to time, and it is hereby agreed that
AVLIC may surrender, release, exchange or alter any duty or obligation, either
in whole or in part, without affecting the obligation or liability of AMAL on
this Guarantee.
Section VI - Termination of Guarantee
This Guarantee shall continue in full force and effect and remain binding upon
AMAL, unless one of the following acts shall occur:
A. The conditions identified in Section II.B. above as a basis for termination
of this Guarantee shall occur; or
B. The ▇▇▇▇ Guarantee shall be terminated and/or ▇▇▇▇ shall be discharged of
all duties and obligations thereunder for any reason other than a purchase
by AMAL, directly or indirectly, of all of the interests in AVLIC; of
C. AVLIC itself shall be recognized by a National Rating Agency to have
financial quality equal to or greater than ▇▇▇▇. ▇▇▇▇ may thereafter file a
written notice, together with a copy of such rating, with the department of
insurance for each state in which AVLIC then conducts business, and AMAL
shall thereupon be discharged of all duties or obligations under this
Guarantee regardless of whether such obligations occurred before or after
AVLIC shall have received such rating.
IN WITNESS WHEREOF, this Guarantee has been duly executed by the parties hereto
as of the date first written above.
AMAL CORPORATION AMERITAS VARIABLE LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------- -------------------------------
Its: Chairman of the Board Its: Chairman of the Board
--------------------------------- -------------------------------
AGREEMENT REGARDING
SHARE PURCHASES
This AGREEMENT REGARDING SHARE PURCHASES (the "Agreement") is made as
of September 23, 2005, by and among Ameritas Life Insurance Corp. ("Buyer"),
AMAL Corporation ("AMAL") and AmerUs Life Insurance Company ("Seller").
RECITALS
A. Seller owns 42.19672 shares of capital stock of AMAL (represented by
Certificate Numbers 12 (40.19447 shares) and 13 (2.00225 shares))
(collectively, the "AMAL Shares").
B. AMAL, inter alia, owns 100% of the shares of capital stock of Ameritas
Investment Corp. ("AIC").
C. Seller has agreed to dispose of its AMAL Shares for an aggregate
consideration of $ in a transaction in which concurrently (i)
Buyer will purchase 40.19447 of the AMAL Shares from Seller for a purchase
price of $ and (ii) AMAL will exchange 70,499 shares of AIC
common stock (the "AIC Shares"), constituting 33.58695% of the outstanding
shares of capital stock of AIC, for 2.00225 of the AMAL Shares owned by
Seller (having an agreed upon value of $ )
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises set forth in this Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
intending to be legally bound hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1:
"AIC Shareholder Agreement" -- Shareholder Agreement to be entered into
by and between Seller and AMAL as of the Closing Date, in the form of Exhibit A
attached.
"Agreement Regarding Distribution" -- Agreement Regarding Distribution
to be entered into by and between Seller and AVLIC as of the Closing Date, in
the form of Exhibit B attached.
"AML" -- American Mutual Life Insurance Company n/k/a AmerUs Life
Insurance Company.
"AVLIC" - Ameritas Variable Life Insurance Company.
"Best Efforts" - the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances to ensure that such result
is achieved as expeditiously as possible.
"Closing Date" - shall mean September 26, 2005, or such earlier date as
the parties hereto may agree upon in writing.
"Consent" - any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contemplated Transactions" - all of the transactions, agreements,
covenants, representations and warranties set forth in and/or contemplated by
this Agreement, including, but not limited to: (i) the sale of 40.19447 AMAL
Shares by Seller to Buyer; (ii) Seller's and AMAL's exchange of 2.00225 of AMAL
Shares for the AIC Shares, (iii) the performance by Buyer, Seller and AMAL of
their respective covenants, agreements and obligations under this Agreement and
(iv) the execution and delivery of the documents, agreements and certificates as
contemplated by this Agreement.
"Contract" - any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
"Existing Guarantees" -- collectively, the Guaranty, the State
Guarantees and each and every agreement, document or instrument obligating
Seller to pay or perform any duty, agreement or obligation of AMAL or AVLIC.
"Governmental Authorization"- any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"Governmental Body" - any: (i) nation, state, county, city, town,
village, district, or other jurisdiction of any nature; (ii) federal, state,
local, municipal, foreign, or other government; (ii governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal); (iv)
multi-national organization or body; or (v) body exercising, or entitled to
exercise, any administrative, executive, judicial, legislative, police,
regulatory, or taxing authority or power of any nature.
"Guaranty" - Guarantee Agreement dated as of April 1, 1996 by AML and
AVLIC pursuant to which AML guaranteed the performance of all of the duties of
AVLIC.
"HSR Act" the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 or
any successor law, and regulations and rules issued pursuant to that Act or any
successor law.
"Knowledge" - a Person will be deemed to have "Knowledge " of a
particular fact or other matter if any individual who is serving, or who has at
any time served, as an employee,
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director, officer, partner, executor, or trustee of such Person (or in any
similar capacity) has, or at any time had, Knowledge of such fact or other
matter.
"Legal Requirement" - any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"Management and Administrative Service Agreement" - Management and
Administrative Service Agreement to be entered into by and between Seller and
AVLIC as of the Closing Date, in the form of Exhibit C attached.
"Order" - any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"Organizational Documents" - (a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) any charter or similar
document adopted or filed in connection with the creation, formation, or
organization of a Person; and (c) any amendment to any of the foregoing.
"Person" - any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Proceeding" - any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Related Persons" - any of the following
(i) any Person that directly or indirectly controls, is directly or
indirectly controlled by, or is directly or indirectly under
common control with such specified Person;
(ii) any Person that holds a Material Interest in such specified
Person;
(iii) any Person in which such specified Person holds a Material
Interest; or
(iv) any Person with respect to which such specified Person serves as
a general partner or a trustee (or in a similar capacity).
For purposes of this definition, "Material Interest" means direct or
indirect beneficial ownership (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of voting securities or other voting interests
representing at least 25% of the outstanding voting power of a Person or equity
securities or other equity interests representing at least 25% of the
outstanding equity securities or equity interests in a Person.
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"Securities Act" the Securities Act of 1933 or any successor law, and
regulations and rules issued pursuant to that Act or any successor law.
"State Guarantees" -- any guarantee, indemnity, assumption or similar
document, agreement or instrument provided, given or delivered by Seller or to
which Seller is bound or obligated that relates to or is in connection with,
providing guarantees or assurances of or with respect to AVLIC's or AMAL's
payment or performance of any of their respective obligations, duties or
agreements.
"Termination Agreement" Termination of Management and Administrative
Service Agreement to be entered into by and among Seller, Buyer and AVLIC as of
the Closing Date, in the form of Exhibit D attached.
2. SALE AND TRANSFER OF THE AMAL SHARES AND THE AIC SHARE CLOSING
2.1 AMAL Shares. Subject to the terms and conditions of this Agreement, on
the Closing Date, Seller will sell and transfer 40.19447 AMAL Shares to Buyer
and Buyer will purchase the AMAL Shares from Seller.
2.2 Buyer's Purchase Price for AMAL Shares. The Buyer's purchase price for
40.19447 AMAL Shares shall be $ .
2.3 MC Shares. Subject to the terms and conditions of this Agreement,
on the Closing Date, Seller shall exchange 2.00225 of Seller's AMAL Shares for
AMAL's AIC Shares.
2.4 Fair Market Value of AIC Shares. The parties understand and agree that
the fair market value for the AIC Shares and the 2.00225 AMAL Shares is equal to
$ .
2.5 Closing Obligations. On the Closing Date:
(a) Seller will deliver:
(i) to Buyer certificates representing 40.19447 AMAL Shares, duly
endorsed (or accompanied by duly executed stock powers) by an
authorized officer of Seller; and
(ii) to AVLIC a counterpart of each of the following: (x) Agreement
Regarding Distribution, (y) Management and Administrative Service
Agreement and (z) Termination Agreement, each executed by an
authorized officer of Seller.
(b) Seller will deliver to AMAL;
(i) certificates representing 2.00225 AMAL Shares, duly endorsed (or
accompanied by duly executed stock powers) by an authorized officer of
Seller, and
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(ii) a counterpart of the AIC Shareholder Agreement, executed by an
authorized officer of Seller.
(c) Buyer will deliver or cause to be delivered to Seller:
(i) $ in immediately available funds via wire transfer as
follows:
The Bank of New York
ABA #▇▇▇▇▇▇▇▇▇
Account name: AmerUs Life Insurance Company
Account number: 0000-010040
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
which amount represents the purchase price Buyer is paying for the
AMAL Shares;
(ii) a counterpart of the Agreement Regarding Distribution executed by
an authorized officer of AVLIC;
(iii) a counterpart of the Management and Administrative Service
Agreement executed by an authorized officer of AVLIC; and
(iv) a counterpart of the Termination Agreement executed by an
authorized officer of AVLIC and Buyer.
(d) AMAL will deliver to Sent :
(i) a counterpart of the AIC Shareholder Agreement executed by an
authorized officer of AMAL; and
(ii) certificates representing the AIC Shares, duly endorsed (or
accompanied by duly executed stock powers) by an authorized officer of
AMAL.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Buyer and AMAL as follows:
3.1 Organization and Good Standing. Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Iowa.
3.2 Authority; No Conflict. Except as may be limited by bankruptcy,
insolvency or other similar laws or by equitable principals related to or
limiting creditors' rights generally: (a) this Agreement constitutes the legal,
valid, and binding obligation of Seller, enforceable against Seller in
accordance with its terms and (b) upon the execution and delivery by Seller of
the AIC Shareholder Agreement, the Agreement Regarding Distribution and the
Management and Administrative Service Agreement (collectively, the "Seller's
Closing Documents") the Seller's
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Closing Documents will constitute the legal, valid, and binding obligations of
Seller, enforceable against Seller in accordance with their terms, Seller has
the absolute and unrestricted right, power, authority, and capacity to execute
and deliver this Agreement and the Seller's Closing Documents and to perform its
obligations under this Agreement and the Seller's Closing Documents.
Neither the execution and delivery of this Agreement by Seller nor the
consummation or performance of any of the Contemplated Transactions by Seller
will give any Person the right to prevent, delay, or otherwise interfere with
any of the Contemplated Transactions or this Agreement pursuant to: (a) any
provision of Buyer's Organizational Documents; (b) any resolution adopted by the
board of directors or the shareholders of Seller; (c) any Legal Requirement or
Order to which Seller may be subject; or (d) any Contract to which Seller is a
party or by which Seller may be bound.
3.3 Consents. Except for such Consents as Seller has already obtained,
Seller is not and will not be required to obtain any Consent from any Person in
connection with the execution and delivery of this Agreement or the consummation
or performance of any of the Contemplated Transactions,
3.4 Investment Intent. Seller is acquiring the AIC Shares for its own
account and not with a view to their distribution within the meaning of Section
2 (11) of the Securities Act.
3.5 Certain Proceedings. There is no pending Proceeding that has been
commenced against Seller that challenges, or may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the Contemplated
Transactions. To Seller's Knowledge, no such Proceeding has been threatened.
3.6 Closing Date. Unless Seller provides written notice to the Buyer to the
contrary prior to the Closing Date, Seller shall be deemed to have remade each
of the foregoing representations and warranties to Buyer and AMAL as of the
Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to
Seller as follows:
4.1 Organization and Good Standing. Buyer and AVLIC are each corporations
duly organized, validly existing, and in good standing under the laws of the
State of Nebraska.
4.2 Authority; No Conflict. Except as may be limited by bankruptcy,
insolvency or other similar laws or by equitable principals related to or
limiting creditors' rights generally: (a) this Agreement constitutes the legal,
valid, and binding obligation of Buyer, enforceable against Buyer in accordance
with its terms and (b) upon the execution and delivery by AVLIC of the Agreement
Regarding Distribution and the Management and Administrative Service Agreement
(collectively, the "AVLIC's Closing Documents"), AVLIC's Closing Documents will
constitute the legal, valid, and binding obligations of AVLIC, enforceable
against AVLIC in accordance with their respective terms. Buyer has the absolute
and unrestricted right, power, and authority to execute and deliver this
Agreement and AVLIC has the absolute and unrestricted right, power,
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and authority to execute and deliver AVLIC's Closing Documents and to perform
their respective obligations under this Agreement and AVLIC's Closing Documents.
Neither the execution or delivery of this Agreement by Buyer nor the
consummation or performance of any of the Contemplated Transactions by Buyer
and/or AVLIC will give any Person the right to prevent, delay, or otherwise
interfere with any of the Contemplated Transactions or this Agreement pursuant
to: (a) any provision of Buyer's or AVLIC' s Organizational Documents; (b) any
resolution adopted by the board of directors or the stockholders of Buyer or
AVLIC; (c) any Legal Requirement or Order to which Buyer or AVLIC may be
subject; or (d) any Contract to which Buyer or AVLIC is a party or by which
Buyer or AVLIC may be bound.
4.3 Consents. Except for such Consents as Buyer has already obtained or
are set forth on Schedule 4.3 attached, neither Buyer nor AVLIC is or will be
required to obtain any Consent from any Person in connection with the execution
and delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.
4.4 Investment Intent. Buyer is acquiring the AMAL Shares for its own
account and not with a view to their distribution within the meaning of Section
2(11) of the Securities Act.
4.5 Certain Proceedings. There is no pending Proceeding that has been
commenced against Buyer or AVLIC that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. To Buyer's Knowledge, no such Proceeding has been
threatened.
4.6 Closing Date. Unless Buyer provides written notice to the Seller to the
contrary prior to the Closing Date, Buyer shall be deemed to have remade each of
the foregoing representations and warranties to Seller as of the Closing Date.
5. REPRESENTATIONS AND WARRANTIES OF AMAL. AMAL represents and warrants to
Seller as follows:
5.1 Organization and Good Standing. AMAL is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nebraska.
5.2 Authority; No Conflict. Except as may be limited by bankruptcy,
insolvency or other similar laws or by equitable principals related to or
limiting creditors' rights generally: (a) this Agreement constitutes the legal,
valid, and binding obligation of AMAL enforceable against AMAL in accordance
with its terms and (b) upon the execution and delivery by AMAL of the AIC
Shareholder Agreement, the AIC Shareholder Agreement will constitute the legal,
valid, and binding obligations of AMAL, enforceable against AMAL in accordance
with their respective terms. AMAL has the absolute and unrestricted right,
power, and authority to execute and deliver this Agreement and the AIC
Shareholder Agreement and to perform its obligations under this Agreement and
the AIC Shareholder Agreement.
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Neither the execution and delivery of this Agreement by AMAL nor the
consummation or performance of the AIC Shareholder Agreement by AMAL will give
any Person the right to prevent, delay, or otherwise interfere with this
Agreement and/or the AIC Shareholder Agreement pursuant to: (a) any provision of
AMAL's Organizational Documents; (b) any resolution adopted by the board of
directors or the stockholders of AMAL; (c) any Legal Requirement or Order to
which AMAL may be subject; or (d) any Contract to which AMAL is a party or by
which AMAL may be bound.
5.3 Consents. Except for such Consents as AMAL has already obtained, AMAL
will not be required to obtain any Consent from any Person in connection with
the execution and delivery of this Agreement or the consummation or performance
of any of the AIC Shareholder Agreement.
5.4 Certain Proceedings. There is no pending Proceeding that has been
commenced against AMAL that challenges, or may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the Contemplated
Transactions. To AMAL's Knowledge, no such Proceeding has been threatened.
5.5 Closing Date. Unless AMAL provides written notice to the Seller to the
contrary prior to the Closing Date, AMAL shall be deemed to have remade each of
the foregoing representations and warranties to Seller as of the Closing Date.
5.6 AIC Capital Stock. AMAL is the owner of 209,900 shares of common stock
of AIC, which constitute all of the outstanding shares of capital stock of AIC.
There are no outstanding options or other rights to purchase shares of capital
stock of Ale or obligations to offer or sell any right, title or interest in
and/or to shares of the capital stock of AIC.
6. COVENANTS OF BUYER.
6.1 Approvals of Governmental Bodies. As promptly as practicable after the
date of this Agreement, Buyer will, and will cause each of its Related Persons
to, make all filings required by Legal Requirements to be made by them to
consummate the Contemplated Transactions (including any required filings under
the HSR Act). Between the date of this Agreement and the Closing Date, Buyer
will use its Best Efforts to obtain the Consents set forth in Schedule 4.3.
6.2 Release of Guarantees. Buyer covenants and agrees from and after the
Closing Date that it shall use its Best Efforts to effect the termination of
each of the Existing Guarantees. Buyer covenants and agrees to promptly after
the Closing Date file, as appropriate, evidence of the termination of the
Existing Guarantees and/or the assumptions and indemnities given to Seller by
Buyer pursuant to Section 11 hereof, which evidence of assumptions and
indemnities shall be substantially and in all material respects in the form of
Schedule 6.2 attached, with each state in which (i) AVLIC conducts business and
(ii) Seller has or might have an obligation, duty or liability with respect to
an Existing Guaranty.
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7. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE. Seller's obligation to
sell AMAL Shares to Buyer, exchange AMAL Shares with AMAL for the AIC Shares and
to take the other actions required to be taken by Seller on the Closing Date is
subject to all of Buyer's and AMAL's representations and warranties in this
Agreement (considered collectively), and each of these representations and
warranties (considered individually), being accurate in all material respects as
of the Closing Date as if made on the Closing Date.
8. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. Buyer's obligation to
purchase AMAL Shares as contemplated herein and to take the other actions
required to be taken by Buyer on the Closing Date is subject to (i) the Buyer's
having received each of the Consents identified in Schedule 4.3 (which condition
will be deemed waived by Buyer if Buyer fails to provide notice to Seller prior
to the Closing Date that Buyer has failed to obtain such Consents) and (ii) all
of Seller's representations and warranties in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), being accurate in all material respects as of the Closing Date as
if made on the Closing Date.
9. CONDITIONS PRECEDENT TO AMAL'S OBLIGATION TO CLOSE. AMAL obligation to
exchange the AIC Shares and to enter into the AIC Shareholder Agreement is
subject to all of Seller's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), being accurate in all material respects as of the
Closing Date as if made on the Closing Date.
10. TERMINATION. This Agreement may, by notice given on or before the Closing
Date, be terminated:
(i) by Buyer if a material breach of any representation, covenant or
obligation under this Agreement has been committed by Seller or if Buyer,
after using its Best Efforts, has not been able to obtain each of the
consents set forth on Schedule 4.3.
(ii) by AMAL if a material breach of any representation, covenant or
obligation under this Agreement has been committed by Seller.
(iii) by Seller if a material breach of any representation, covenant
or obligation has been committed by Buyer or AMAL or if Seller receives a
notice from the Buyer that Buyer has failed after using its Best Efforts to
obtain the Consents set forth on Schedule 4.3.
11. ASSUMPTION AND INDEMNITY. If no party terminates this Agreement pursuant
to Section 10, from and after the Closing Date:
11.1 Assumption of Existing Guarantees: Buyer assumes and agrees to
promptly pay and perform all of Seller's obligations under, pursuant to,
and/or in connection with the Existing Guarantees whether now existing or
hereafter arising, when and as the same become payable or performable.
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11.2 Indemnification of Seller. Buyer agrees to unconditionally
indemnify, defend, and hold the Seller harmless from and against any and all
claims, demands, actions or causes of action that are asserted at any time
against the Seller (or any Related Person of the Seller), which directly or
indirectly relate to or arise from any of the Existing Guarantees, that are
asserted at any time against the Seller (or any Related Person of Seller), and
any and all losses, liabilities, damages, expenses (including reasonable
attorneys' fees and disbursements), that the Seller (or any Related Person of
Seller) suffers or incurs as a result of any such claim, demand, action or
causes of action or the assertion of any such claim, demand, action or causes of
action (whether meritorious or not).
12. PUBLIC ANNOUNCEMENTS. Any public announcement or similar publicity with
respect to this Agreement or the Contemplated Transactions will be issued, if at
all, at such time and in such manner as the parties may mutually agree in
writing.
13. CONFIDENTIALITY. Between the date of this Agreement and the Closing Date,
the parties hereto will maintain in confidence, and will cause the directors,
officers, employees, agents, and advisors of such parties to maintain in
confidence the Contemplated Transactions, unless (a) such information is already
known to such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any Consent or approval required for the consummation of the
Contemplated Transactions, or (c) the furnishing information of the Contemplated
Transactions (i) in any legal proceedings, (ii) to any regulatory bodies or
(iii) to any rating agency.
14. TERMINATION OF JOINT VENTURE AGREEMENT. The Buyer, Seller and Acacia Life
Insurance Company understand, agree and acknowledge that all of Seller's rights,
duties and obligations under that certain Joint Venture Agreement between Buyer
and AML n/k/a Seller entered into as of June 30, 1996, as amended, (the "JV
Agreement") shall terminate and, with respect to Seller, the JV Agreement shall
terminate, as of the Closing Date except to the extent any party's rights,
duties and obligations are explicitly provided to survive the termination of the
JV Agreement, provided that such termination shall be without prejudice to any
claim which any party may have against the other for breach of the JV Agreement
(or any representation, warranty, covenant or agreement included therein).
15. NOTICES. All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt) or (b) when received by
the addressee if sent by a nationally recognized overnight delivery service, in
each case to the appropriate addresses set forth below (or to such other
addresses as a party may designate by notice to the other parties):
Seller Buyer
Attention: General Counsel Attention: President
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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with a with a
copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
699 Walnut General Counsel
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AMAL
Attention: President ▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
with a
copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Counsel
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
16. WAIVER. Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this Agreement or the documents referred to in
this Agreement will operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege.
17. ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the party to be charged with the amendment.
18. ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. This Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement will be construed to give any Person other than the parties
to this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
19. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
20. SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this Agreement
are provided for convenience only and will not affect its construction or 16.
11
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement, All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
21. TIME OF ESSENCE. With regard to an dates and time periods set forth or
referred to in this Agreement, time is of the essence.
22. SURVIVAL. The representations, duties, obligations and agreements of the
Buyer set forth in Sections 6.2 and Section 11, and all other representations,
duties, obligations and agreements of the parties under this Agreement, shall
survive the Closing Date and the delivery of all documents, agreements and
certificates as contemplated in Section 2 hereof:
23. GOVERNING LAW. This Agreement will be governed by the laws of the State of
Nebraska without regard to conflicts of laws principles,
24. COUNTERPARTS. This Agreement may be executed in one or more 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.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
Ameritas Life Insurance Corp. AmerUs Life Insurance Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President & CEO Title: President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. V.P., Sec & Corp. General Counsel Title: SVP
Solely with respect to the
provisions of Section 14 of the
Agreement:
AMAL Corporation Acacia Life Insurance Company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO Title: Chairman, President & CEO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇
Title: V.P., Sec & General Counsel Title: Sr.V.P. & General Counsel
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
21. TIME OF ESSENCE. With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence.
22. SURVIVAL. The representations, duties, obligations and agreements of the
Buyer set forth in Sections 6.2 and Section 11, and all other representations,
duties, obligations and agreements of the parties under this Agreement, shall
survive the Closing Date and the delivery of all documents, agreements and
certificates as contemplated in Section 2 hereof.
23. GOVERNING LAW. This Agreement will be governed by the laws of the State of
Nebraska without regard to conflicts of laws principles.
24. COUNTERPARTS. This Agreement may be executed in one or more 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.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
Ameritas Life Insurance Corp. AmerUs Life Insurance Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name:
Title: President & CEO Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. V.P., Sec & Corp. General Counsel Title: President
Solely with respect to the
provisions of Section 14 of the
Agreement:
AMAL Corporation Acacia Life Insurance Company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By:
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name:
Title: President & CEO Title:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name:
Title: V.P., Sec & General Counsel Title: