Exhibit 10.12
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.
October 5, 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 Thomas
M. Fogt, an individual (the “Holder”), is entitled to
exercise this Warrant (the “Warrant”), in whole or in
part in one or multiple exercises from time to time at any time
during the period specified in Section 2 hereof, to purchase
100,000 fully paid and nonassessable shares of Common Stock, par
value $0.10 per share, of the Company (the “Common
Stock”) at an exercise price of $1.72 per share (the
“Exercise Price”), subject to adjustment pursuant to
Section 3(d) below, 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.
1. Manner of Exercise; Issuance of
Certificates . Subject to the provisions hereof,
this Warrant may be exercised by the Holder, in whole or in part in
one or multiple exercises, by (i) completion of the exercise
agreement in the form attached hereto (the “Exercise
Agreement”) indicating the number of shares to be exercised
at that time, and by the ultimate surrender of this Warrant upon
the final exercise, given 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 (ii) payment in
cash to the Company by the Holder of the Exercise Price multiplied
by the number of shares designated in the Exercise Agreement. If
the Holder exercises this warrant in part, then the Company shall
issue a new Warrant for the shares that remain subject hereto on
the same terms and conditions set forth herein. The Warrant Shares,
upon exercise of the Warrant, 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, and the completed Exercise Agreement shall have been
delivered. Certificates for the Warrant Shares 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 may be exercised by Holder in
whole or in part in one or multiple exercises from time to time
within ten years after, the closing of the proposed transaction
between the Company, Brooke Corporation, a Kansas Corporation
(“Brooke”) and certain others as contemplated under a
certain Stock Purchase and Sale Agreement, dated as of
October 5, 2006 by and among the Company and Brooke
(“Stock Purchase Agreement”). This period shall be the
“Exercise Period.”
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
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