Exhibit 10.13
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO SUCH SECURITIES UNDER THE ACT OR ANY APPLICABLE STATE
SECURITIES LAWS OR AN EXEMPTION THEREFROM. THE WARRANT EVIDENCED
HEREBY IS NOT TRANSFERABLE.
December 8, 2006
FIRST AMERICAN CAPITAL CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
FIRST AMERICAN
CAPITAL CORPORATION, a Kansas corporation (the
“Company”), for value received, hereby certifies that
Brooke Corporation, a Kansas corporation (the
“Holder”), is entitled to purchase from the Company, at
any time during the period specified in Section 2 hereof,
1,643,460 fully paid and nonassessable shares of Common Stock, par
value $0.10 per share, of the Company (the “Common
Stock”), at an aggregate exercise price of $447,818 (the
“Exercise Price”), subject to the other terms herein.
As used herein, the term “Warrant Shares” means the
shares of Common Stock issuable upon exercise of this Warrant (the
“Warrant”).
1. Manner of Exercise; Issuance of Certificates;
Payment for Shares . Subject to the provisions
hereof, this Warrant may be exercised by the Holder, in whole, by
the surrender of this Warrant, together with a completed exercise
agreement in the form attached hereto (the “Exercise
Agreement”), to the Company during normal business hours on
any business day at the Company’s principal executive offices
(or such other office or agency of the Company as it may designate
by notice to the Holder), and upon payment to the Company in cash,
by certified or official bank check or by wire transfer to an
account specified by the Company of the Exercise Price for the
Warrant Shares specified in the Exercise Agreement. The Warrant
Shares so purchased shall be deemed to be issued to the Holder, as
the record owner of such shares, as of the close of business on the
date on which this Warrant shall have been surrendered, the
completed Exercise Agreement shall have been delivered, and payment
shall have been made for such shares as set forth above.
Certificates for the Warrant Shares so purchased, representing the
aggregate number of shares specified in the Exercise Agreement,
shall be delivered to the Holder within five business days after
this Warrant shall have been so exercised. All certificates
representing Warrant Shares that have not been registered
with
the
Securities and Exchange Commission shall bear the following legend,
in addition to any other legend required by applicable law or
otherwise:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH
SECURITIES UNDER THE ACT OR ANY APPLICABLE STATE SECURITY LAWS OR
AN EXEMPTION THEREFROM.
The
certificates so delivered shall be in such denominations as may be
requested by the Holder and shall be registered in the name of the
Holder.
2. Period of Exercise . This
Warrant is exercisable upon, and shall be exercised by Holder as
soon as practicable after, the filing of the amendment to the
Articles of Incorporation of the Company (the “Exercise
Period”) to increase the number of authorized shares of
common stock of the Company to 25,000,000, pursuant to that certain
Stock Purchase and Sale Agreement, dated as of October 6, 2006
by and among the Company, Holder and certain other persons
(“Stock Purchase Agreement”).
3. Certain Agreements of the Company
. The Company covenants as follows (in each case, at its
sole cost and expense):
(a) Shares to be Fully Paid . All
Warrant Shares shall, upon issuance in accordance with the terms of
this Warrant, be validly issued, fully paid, and nonassessable and
free from all taxes, liens, and charges with respect to the issue
thereof.
(b) Reservation of Shares .
During the Exercise Period, the Company shall at all times have
authorized, and reserved, free from preemptive rights, for the
purpose of issuance upon exercise of this Warrant, a sufficient
number of shares of Common Stock to provide for the exercise of
this Warrant.
(c) Certain Actions Prohibited .
The Company shall not, by amendment of its articles of
incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities, or
any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed by
it hereunder, but shall at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the
holder of this Warrant in order to protect the exercise privilege
of the holder of this Warrant against impairment, consistent with
the tenor and purpose of this Warrant. Without limiting the
generality of the foregoing,
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