EXHIBIT 3.1
C&S 500 (Rev. 6/92)
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
Name
STEPHEN C. WATERBURY
Address
WARNER NORCROSS & JUDD LLP
900 OLD KENT BUILDING, 111 LYON STREET, N.W.
City State Zip Code
GRAND RAPIDS MICHIGAN 49503 EFFECTIVE DATE:
Document will be returned to the name and address you enter above.
[ ] [ ] [ ] - [ ] [ ] [ ]
ARTICLES OF INCORPORATION
OF
FOREMOST-MICHIGAN CORPORATION
Pursuant to the Provisions of Act 284, Public Acts of 1972, as
amended, the undersigned executes the following Articles of Incorporation:
ARTICLE I
NAME
The name of the corporation is Foremost-Michigan Corporation.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office in the State
of Michigan is 5600 Beech Tree Lane, Caledonia, Michigan 49316. The name
of its registered agent at such address is Paul D. Yared. The mailing
address is Post Office Box 2450, Grand Rapids, Michigan 49501.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Business
Corporation Act of Michigan.
ARTICLE IV
CAPITAL STOCK
The total number of shares of stock which the Corporation shall
have authority to issue is 60,000 shares of Common Stock, each with a par
value of $1.00. The following provisions shall apply to the authorized
stock of the corporation:
A. NO PREFERENCE. Except as provided by law or by the Corporation's
shareholder rights plan, as in effect from time to time, none of the shares
of the Common Stock shall be entitled to any preferences, and each share of
Common Stock shall be equal to every other share of said Common Stock in
every respect.
B. DIVIDENDS. After payment or declaration of full dividends on all
shares having a priority over the Common Stock as to dividends, and after
making all required sinking or retirement fund payments, if any, on all
classes of preferred shares and on any other stock of the Corporation
ranking as to dividends or assets prior to the Common Stock, dividends on
the shares of Common Stock may be declared and paid, but only when and as
determined by the Board of Directors.
C. RIGHTS ON LIQUIDATION. On any liquidation, dissolution, or
winding up of the affairs of the Corporation, after there shall have been
paid to or set aside for the holders of all shares having priority over the
Common Stock the full preferential amounts to which they are respectively
entitled, the holders of the Common Stock shall be entitled to receive pro
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rata all the remaining assets of the Corporation available for distribution
to its shareholders.
D. VOTING. At all meetings of shareholders of the Corporation, the
holders of the Common Stock shall be entitled to one vote for each share of
Common Stock held by them respectively.
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator is Paul D.
Yared, Post Office Box 2450, Grand Rapids, Michigan 49501.
ARTICLE VI
DURATION
The Corporation is to have perpetual existence.
ARTICLE VII
BOARD OF DIRECTORS; NUMBER; CLASSIFICATION;
VACANCIES; REMOVAL; NOMINATIONS
A. The number of directors constituting the entire Board shall be
not less than five nor more than 15 as fixed from time to time by vote of a
majority of the entire Board; provided, however, that the number of
directors shall not be reduced so as to shorten the term of any director at
the time in office.
B. The Board of Directors shall be divided into three classes as
nearly equal in number as possible, with the term of office of one class
expiring each year. At each annual meeting of the shareholders, the
successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting
of shareholders held in the third year following the year of their
election.
C. Any vacancies in the Board of Directors for any reason, and any
directorships resulting from any increase in the number of directors, may
be filled only by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors so
chosen shall hold office until the next election of the class for which
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such directors shall have been chosen and until their successors shall be
elected and qualified. Subject to the foregoing, at each annual meeting of
shareholders the successors to the class of directors whose term shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Notwithstanding the foregoing, if the holders
of any class or series of preferred stock are entitled to elect one or more
directors to the exclusion of other shareholders, vacancies of that class
or series may be filled only by majority vote of the directors elected by
that class or series then in office, whether or not a quorum, or by the
holders of that class or series.
D. Any director may be removed from office at any time, but only for
cause, and only if removal is approved as set forth below. Except as may be
provided otherwise by law, cause for removal shall be construed to exist
only if: (1) the director whose removal is proposed has been convicted of
a felony by a court of competent jurisdiction and such conviction is no
longer subject to direct appeal; (2) such director has been adjudicated by
a court of competent jurisdiction to be liable for negligence or misconduct
in the performance of his or her duty to the corporation in a matter of
substantial importance to the corporation and such adjudication is no
longer subject to direct appeal; (3) such director has become mentally
incompetent, whether or not so adjudicated, which mental incompetency
directly affects his or her ability as a director of the corporation; or
(4) such director's actions or failure to act are deemed by the Board of
Directors to be in derogation of the director's duties. Whether cause for
removal exists shall be determined by the affirmative vote of 80% of the
voting power of all shares of capital stock of the Corporation then
entitled to vote on the election of directors, voting together as a single
class or by the affirmative vote of a majority of the total number of
directors. Any action to remove a director pursuant to (1) or (2) above
shall be taken within one year of such conviction or adjudication. For
purposes of this paragraph, the total number of directors will not include
the director who is the subject of the removal determination, nor will such
director be entitled to vote thereon.
E. Nominations of directors of the Corporation shall be made in
accordance with the following:
1. Nominations of candidates for election for directors of the
Corporation at any meeting of shareholders called for election of
directors (an "Election Meeting") may be made by the Board of
Directors or by any shareholder entitled to vote at such Election
Meeting, as provided in (2) and (3), immediately below.
2. Nominations made by the Board of Directors shall be made at
a meeting of the Board of Directors, or by written consent of
directors in lieu of a meeting, not less than 30 days prior to the
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date of the Election Meeting, and such nominations shall be reflected
in the minute books of the Corporation as of the date made. At the
request of the Secretary of the Corporation, each proposed nominee
shall provide the Corporation with such information concerning himself
or herself as is required under the rules of the Securities and
Exchange Commission, to be included in the Corporation's proxy
statements soliciting proxies for his or her election as a director.
3. Any shareholder who intends to make a nomination at the
Election Meeting shall deliver a timely notice to the Secretary of the
Corporation setting forth (a) the name, age, business address, and
residence address of each nominee proposed in such notice; (b) the
principal occupation or employment of each such nominee; (c) the
number of shares of capital stock of the Corporation which are
beneficially owned by each such nominee; (d) a statement that the
nominee is willing to be nominated; and (e) such other information
concerning each such nominee as would be required under the rules of
the Securities and Exchange Commission in a proxy statement soliciting
proxies for the election of such nominees. To be timely, a
shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 120
days prior to the date of notice of the Election Meeting in the case
of an annual meeting, and not more than seven days following the date
of notice in the case of a special meeting.
4. If the chairman of the Election Meeting determines that a
nomination was not made in accordance with the foregoing procedures,
such nomination shall be void.
ARTICLE VIII
BOARD AUTHORITY
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
A. To make, alter, or repeal the Bylaws of the Corporation.
B. If authorized by these Articles, to adopt resolutions to issue
shares of preferred stock, in such amounts and series, and with such
dividend, liquidation, voting, conversion, redemption, and other rights as
shall be set forth in the resolution, and to execute, acknowledge, and file
a certificate setting forth a copy of such resolution(s) and the number of
shares of stock of such class or series as to which the resolution(s)
apply, pursuant to Michigan law. Upon filing, the certificate shall
constitute an amendment to these Articles of Incorporation.
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C. To authorize and cause to be executed mortgages and liens upon
the real property of the Corporation.
D. To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
E. By a majority vote of the whole Board, to designate one or more
committees, each committee to consist of one or more directors of the
Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. The Bylaws may provide that in the
absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he, she or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place
of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, or in the
Bylaws of the Corporation, shall have and may exercise all of the powers
and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Articles of Incorporation, adopting an agreement of merger or
consolidation, recommending to the shareholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the shareholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation.
F. When and as authorized by the shareholders in accordance with
law, to sell, lease, or exchange all or substantially all of the property
and assets of the Corporation, including its goodwill and its corporate
franchises, upon such terms and conditions and for such consideration,
which may consist in whole or in part of money or property including shares
of stock in, and/or securities of, any other corporation or corporations,
as its Board of Directors shall deem expedient or for the best interest of
the Corporation.
ARTICLE IX
ELECTION OF DIRECTORS; LOCATION OF MEETINGS, BOOKS, AND OFFICES
Elections of the directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide. If the Bylaws so provide,
the shareholders and directors shall have power to hold meetings, to keep
the books, documents and papers of the Corporation outside the State of
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Michigan, and to have one or more offices within or without the State of
Michigan, at such places as may be designated from time to time by the
Bylaws or by resolution of the shareholders or directors, except as
otherwise required by the laws of Michigan.
ARTICLE X
CREDITOR ARRANGEMENTS
When a compromise or arrangement or a plan of reorganization of
this Corporation is proposed between this Corporation and its creditors or
any class of them or between this Corporation and its shareholders or any
class of them, a court of equity jurisdiction within the state, on
application of this Corporation or of a creditor or shareholder thereof, or
on application of a receiver appointed for the Corporation may order a
meeting of the creditors or class of creditors or of the shareholders or
class of shareholders to be affected by the proposed compromise or
arrangement or reorganization to be summoned in such manner as the court
directs. If a majority in number representing three-fourths (3/4) in value
of the creditors or class of creditors, or of the shareholders or class of
shareholders to be affected by the proposed compromise or arrangement or
reorganization, agree to a compromise or arrangement or a reorganization of
this Corporation as a consequence of the compromise or arrangement, the
compromise or arrangement and the reorganization, if sanctioned by the
court to which the application has been made, shall be binding on all the
creditors or class of creditors, or on all the shareholders or class of
shareholders and also on this Corporation.
ARTICLE XI
AMENDMENT OF ARTICLES OF INCORPORATION
The Corporation reserves the right to amend, alter, change, or
repeal any provision contained in these Articles of Incorporation in the
manner now or hereafter prescribed by the statutes of Michigan, and all
rights and powers conferred on directors and shareholders prescribed herein
are subject to this reservation; PROVIDED, HOWEVER, that this Article XI,
as well as the following provisions of these Articles of Incorporation, may
not be amended, altered, changed, or repealed, nor may any provision
inconsistent with the following provisions be adopted, without the approval
of at least 80% of the total voting power of all shares of stock entitled
to vote, voting together as a single class at an annual or special meeting
of shareholders: (i) Article VII - Board of Directors; Number;
Classification; Vacancies; Removal; Nominations; (ii) Article XII -
Amendment of Bylaws; and (iii) Article XIII - Special Shareholder Meetings,
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unless such repeal, alteration, or amendment of any inconsistent provision
or provisions is declared advisable by the Board of Directors by the
affirmative vote of at least 75% of the entire Board of Directors,
notwithstanding the fact that a lesser percentage may be specified by the
Michigan Business Corporation Act.
ARTICLE XII
AMENDMENT OF BYLAWS
The Bylaws of the Corporation may be repealed, altered, amended,
or rescinded at any time by the Board of Directors without shareholder
approval. The Bylaws of the Corporation may not be amended by the
shareholders of the Corporation except upon the affirmative vote of at
least 80% of the total voting power of all shares of stock entitled to vote
in the election of directors, voting together as a single class at an
annual or special meeting of shareholders.
ARTICLE XIII
SPECIAL SHAREHOLDER MEETINGS
Special shareholder meetings may be called by the Board of
Directors or a committee of the Board authorized to call special
shareholder meetings. The shareholders of the Corporation shall not have
the power or ability to call a special shareholder meeting, except as
provided in the Bylaws or under the Michigan Business Corporation Act, and
subject to the rights of the holders of preferred stock, if any.
ARTICLE XIV
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnify directors and officers of the
corporation as of right, and shall advance expenses, to the fullest extent
now or hereafter permitted by law in connection with any actual or
threatened civil, criminal, administrative, or investigative action, suit,
or proceeding (whether brought by or in the name of the Corporation, a
subsidiary, or otherwise) arising out of their service to the Corporation,
a subsidiary, or to another organization at the request of the Corporation
or a subsidiary. The Corporation may indemnify persons who are not
directors or officers of the Corporation to the extent authorized by Bylaw,
resolution of the Board of Directors, or contractual agreement authorized
by the Board of Directors. The Corporation may purchase and maintain
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insurance to protect itself and any such director, officer, or other person
against any liability asserted against him or her and incurred by him or
her in respect of such service whether or not the Corporation would have
the power to indemnify him or her against such liability by law or under
the provisions of this Article. The provisions of this Article shall be
deemed contractual and shall apply to actions, suits, or proceedings,
whether arising from acts or omissions occurring before or after the
adoption of this Article, and to directors, officers, and other persons who
have ceased to render such service, and shall inure to the benefit of the
heirs, executors, and administrators of the directors, officers, and other
persons referred to in this Article.
ARTICLE XV
LIMITATION ON DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to
the Corporation or its shareholders for monetary damages for any action
taken or any failure to take any action as a director, except that a
director's liability is not limited for:
A. the amount of a financial benefit received by a director to which
he or she is not entitled;
B. intentional infliction of harm on the Corporation or its
shareholders;
C. a violation of Section 551(1) of the Michigan Business
Corporation Act; or
D. intentional criminal act.
If the Michigan Business Corporation Act is amended to further
eliminate or limit the liability of a director, then a director of the
Corporation (in addition to the circumstances in which a director is not
personally liable as set forth in the preceding paragraph) shall, to the
fullest extent permitted by the Michigan Business Corporation Act, as so
amended, not be liable to the Corporation or its shareholders. No
amendment to or modification or repeal of this Article shall increase the
liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment,
modification or repeal.
This Article applies only to acts or omissions and to breaches of
fiduciary duty occurring after this Article became effective.
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ARTICLE XVI
DENIAL OF PREEMPTIVE RIGHTS
The holders of the Common Stock shall have no preemptive rights
to subscribe for any shares of any class of stock or securities of any kind
of the Corporation whether now or hereafter authorized.
The undersigned incorporator, for the purpose of forming a
corporation pursuant to the Michigan Business Corporation Act, has executed
these Articles of Incorporation this ___ day of April 1998.
________________________________________
Paul D. Yared, Incorporator
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MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
Name Tashia L. Rivard
Address Warner Norcross & Judd LLP
900 Old Kent Building
111 Lyon Street, N.W.
City Grand Rapids, MI 49503-2489 EFFECTIVE DATE:
DOCUMENT WILL BE RETURNED THE NAME AND ADDRESS INDICATED ABOVE
CERTIFICATE OF MERGER
OF
FOREMOST CORPORATION OF AMERICA
INTO
FOREMOST-MICHIGAN CORPORATION
PURSUANT TO THE PROVISIONS OF ACT 284, PUBLIC ACTS OF 1972
(PROFIT CORPORATIONS), THE UNDERSIGNED CORPORATIONS EXECUTE THE FOLLOWING
CERTIFICATE:
This Certificate of Merger is filed pursuant to Section 712 of
the Michigan Business Corporation Act, as amended (the "Michigan Business
Corporation Act"). This Certificate of Merger pertains to the Agreement
and Plan of Merger dated as of June 30, 1998 (the "Plan of Merger"),
between Foremost Corporation of America, a Delaware corporation
("Foremost"), and Foremost-Michigan Corporation, a Michigan corporation
("Foremost-Michigan"), a copy of which is attached to this Certificate of
Merger.
1. The Plan of Merger is as follows:
(a) The name of each constituent corporation and its
identification number is:
CERTIFICATE OF MERGER
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NAME CORPORATION IDENTIFICATION NUMBER
---- ---------------------------------
Foremost Corporation of America 627-165
Foremost-Michigan Corporation 530-850
(b) The name of the surviving corporation is Foremost-Michigan
Corporation and its identification number is 530-850.
(c) For each constituent corporation, state:
NAME OF CORPORATION DESIGNATION AND NUMBER OF CLASS OR SERIES OF SHARES CLASS OR SERIES ENTITLED
OUTSTANDING SHARES IN ENTITLED TO VOTE TO VOTE AS A CLASS
EACH CLASS OR SERIES
Foremost Corporation Common Stock Common Stock None
of America $1.00 par value
27,243,940 shares
Foremost-Michigan Common Stock Common Stock None
Corporation $1.00 par value
100 shares
The number of outstanding shares of the Common Stock of Foremost is subject
to change before the effective time of the merger due to the issuance of
additional shares of Common Stock upon the exercise of employee stock
options and the grant or sale of shares to, or for the account of,
directors and employees pursuant to other benefit plans, and the issuance
of additional shares if and as authorized by the board of directors of
Foremost.
2. (a) The manner and basis of converting shares are as follows:
The terms and conditions of the merger are fully set forth in the Plan of
Merger attached as APPENDIX A, which is incorporated into and made a part
of this Certificate of Merger. The manner and basis of converting each
share of Foremost Common Stock into shares of Foremost-Michigan Common
Stock are described in Article IV of the Plan of Merger. Under those
provisions, each issued and outstanding share of Foremost Common Stock will
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CERTIFICATE OF MERGER
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be converted into one validly issued, fully paid, and nonassessable share
of Foremost-Michigan Common Stock.
(b) The amendments to the Articles of the surviving corporation
to be effected by the merger are as follows:
ARTICLE I
NAME
The name of the corporation is Foremost Corporation of
America.
ARTICLE IV
CAPITAL STOCK
The total number of shares of stock which the Corporation
shall have authority to issue is 70,000,000 shares of Common
Stock, each with a par value of $1.00, and 10,000,000 shares of
Preferred Stock, without par value. Preferred Shares may be
issued in series, each series being composed of such number of
shares and having such dividend, liquidation, voting, conversion,
redemption and other rights, if any, as the Board of Directors
may determine from time to time by resolution.
The following provisions shall apply to the authorized stock
of the corporation:
A. PROVISIONS APPLICABLE TO COMMON STOCK.
1. NO PREFERENCE. Except as provided by law or by the
Corporation's shareholder rights plan, as in effect from time to
time, none of the shares of the Common Stock shall be entitled to
any preferences, and each share of Common Stock shall be equal to
every other share of said Common Stock in every respect.
2. DIVIDENDS. After payment or declaration of full
dividends on all shares having a priority over the Common Stock
as to dividends, and after making all required sinking or
retirement fund payments, if any, on all classes of preferred
shares and on any other stock of the Corporation ranking as to
dividends or assets prior to the Common Stock, dividends on the
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CERTIFICATE OF MERGER
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shares of Common Stock may be declared and paid, but only when
and as determined by the Board of Directors.
3. RIGHTS ON LIQUIDATION. On any liquidation,
dissolution, or winding up of the affairs of the Corporation,
after there shall have been paid to or set aside for the holders
of all shares having priority over the Common Stock the full
preferential amounts to which they are respectively entitled, the
holders of the Common Stock shall be entitled to receive pro rata
all the remaining assets of the Corporation available for
distribution to its shareholders.
4. VOTING. At all meetings of shareholders of the
Corporation, the holders of the Common Stock shall be entitled to
one vote for each share of Common Stock held by them
respectively.
B. PROVISIONS APPLICABLE TO PREFERRED STOCK.
1. ISSUANCE IN SERIES. The authorized shares of Preferred
Stock may be issued from time to time in one or more series, each
of such series to have such designations, powers, preferences,
and relative, participating, optional, or other rights, and such
qualifications, limitations, or restrictions, as may be stated in
a resolution or resolutions providing for the issue of such
series adopted by the Board of Directors. Authority is hereby
expressly granted to the Board of Directors, subject to the
provision of this Article, to authorize the issuance of any
authorized and unissued shares of Preferred Stock (whether or not
previously designated as shares of a particular series, and
including shares of any series issued and thereafter acquired by
the corporation) as shares of one or more series of Preferred
Stock, and with respect to each series to determine and designate
by resolution or resolutions providing for the issuance of such
series:
(a) The number of shares to constitute the series and
the title thereof;
(b) Whether the holders shall be entitled to
cumulative or noncumulative dividends, and, with respect to
shares entitled to cumulative dividends, the date or dates
from which such dividends shall be cumulative, the rate of
the annual dividends thereon (which may be fixed or variable
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CERTIFICATE OF MERGER
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and may be made dependent upon facts ascertainable outside
of the Articles of Incorporation), the dates of payment
thereof, and any other terms and conditions relating to such
dividends;
(c) Whether the shares of such series shall be
redeemable, and, if redeemable, whether redeemable for cash,
property, or rights, including securities of any other
corporation, and whether redeemable at the option of the
holder or the Corporation or upon the happening of a
specified event, the limitations and restrictions with
respect to such redemption, the time or times when, the
price or prices or rate or rates at which, the adjustments
with which, and the manner in which such shares shall be
redeemable, including the manner of selecting shares of such
series for redemption if less than all shares are to be
redeemed, and the terms and amount of a sinking fund, if
any, provided for the purchase or redemption of such shares;
(d) Whether the shares of such series shall be
participating or nonparticipating, and, with respect to
participating shares, the date or dates from which the
dividends shall be participating, the rate of the dividends
thereon (which may be fixed or variable and may be made
dependent upon facts ascertainable outside of the Articles
of Incorporation), the dates of payment thereof, and any
other terms and conditions relating to such additional
dividends;
(e) The amount per share payable to holders upon any
voluntary or involuntary liquidation, dissolution, or
winding up of the affairs of the Corporation;
(f) The conversion or exchange rights, if any, of such
series, including, without limitation, the price or prices,
rate or rates, and provisions for the adjustment thereof
(including provisions for protection against the dilution or
impairment of such rights), and all other terms and
conditions upon which shares constituting such series may be
converted into, or exchanged for, shares of any other class
or classes or series;
(g) The voting rights per share, if any, of each such
series, provided that in no event shall any shares of any
series be entitled to more than one vote per share; and
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CERTIFICATE OF MERGER
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(h) All other rights, privileges, terms, and
conditions that are permitted by law and are not
inconsistent with this Article.
All shares of Preferred Stock shall rank equally and be
identical in all respects except as to the matters specified in
this Article or any amendment thereto, or the matters permitted
to be fixed by the Board of Directors, and all shares of any one
series thereof shall be identical in every particular except as
to the date, if any, from which dividends on such shares shall
accumulate.
2. DIVIDENDS. The holders of shares of each series of
Preferred Stock shall be entitled to receive, when, as, and if
declared by the Board of Directors, dividends at, but not
exceeding, the dividend rate fixed for such series by the Board
of Directors pursuant to the provisions of this Article.
3. LIQUIDATION PREFERENCE. Upon the liquidation,
dissolution, or winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of each series of
Preferred Stock shall be entitled to receive in full out of the
assets of the Corporation available for distribution to
shareholders (including its capital) before any amount shall be
paid to, or distributed among, the holders of Common Stock, an
amount or amounts fixed by the Board of Directors pursuant to the
provisions of this Article. If the assets of the Corporation
legally available for payment or distribution to holders of the
Preferred Stock upon the voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the Corporation are
insufficient to permit the payment of the full preferential
amount to which all outstanding shares of the Preferred Stock are
entitled, then such assets shall be distributed ratably upon
outstanding shares of the Preferred Stock in proportion to the
full preferential amount to which each such share shall be
entitled. After payment to holders of the Preferred Stock of the
full preferential amount, holders of the Preferred Stock as such
shall have no right or claim to any of the remaining assets of
the corporation. The merger or consolidation of the Corporation
into or with any other corporation, or the merger of any other
corporation into the Corporation, or the sale, lease, or
conveyance of all or substantially all of the property or
business of the Corporation, shall not be deemed to be a
dissolution, liquidation, or winding up for purposes of this
Section 3.
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CERTIFICATE OF MERGER
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(c) The Plan of Merger will be furnished by the surviving
corporation, on request and without costs, to any shareholder of
any constituent profit corporation.
3. This merger is permitted by the laws of the state of Delaware,
the jurisdiction under which Foremost is organized, and the Plan of Merger
was adopted and approved by such corporation pursuant to and in accordance
with the laws of that jurisdiction.
4. The merger shall be effective on June 30, 1998.
5. The Plan of Merger was approved by the Board of Directors of
Foremost-Michigan, the surviving Michigan corporation, without approval of
the shareholders, in accordance with Section 703(a) of the Michigan
Business Corporation Act.
FOREMOST-MICHIGAN CORPORATION
Dated: June ____, 1998 By _____________________________________
Richard L. Antonini
Its Chairman, President, and Chief
Executive Officer
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CERTIFICATE OF MERGER
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Name of Organization Remitting Fees:
WARNER NORCROSS & JUDD LLP
900 Old Kent Building
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503-2489
(616) 752-2000
Certificate Prepared By:
Tashia L. Rivard
WARNER NORCROSS & JUDD LLP
900 Old Kent Building
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503-2489
(616) 752-2171
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APPENDIX A
AGREEMENT AND PLAN OF MERGER
OF
FOREMOST CORPORATION OF AMERICA
(A DELAWARE CORPORATION)
AND
FOREMOST CORPORATION-MICHIGAN
(A MICHIGAN CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER (the "PLAN OF MERGER") is made
and entered into by and between FOREMOST CORPORATION OF AMERICA ("FOREMOST"
or the "DELAWARE CORPORATION"), a Delaware corporation, and its wholly
owned subsidiary, FOREMOST CORPORATION-MICHIGAN ("FOREMOST-MICHIGAN" or the
"MICHIGAN CORPORATION"), a Michigan corporation.
The total number of shares of stock which the Michigan
Corporation has or will have authority to issue consists or shall consist
of 70,000,000 shares of Common Stock, par value $1.00 per share, of which
100 shares are issued and outstanding and held by the Delaware Corporation
as of the date hereof and 10,000,000 shares of Preferred Stock, without par
value, of which no shares are outstanding. Each outstanding share of
Common Stock of the Michigan Corporation is entitled to one vote on any
matter submitted to the vote of the shareholders of the Michigan
Corporation.
The total number of shares of stock which the Delaware
Corporation has authority to issue consists of 35,000,000 shares of Common
Stock, par value $1.00 per share, of which 27,243,940 shares are issued and
outstanding at the date hereof. Each outstanding share of Common Stock of
the Delaware Corporation is entitled to one vote on any matter submitted to
the vote of the stockholders. Additional shares of capital stock of the
Delaware Corporation may be issued, and outstanding shares may be retired
before the effective date of the Merger if authorized by action of the
Board of Directors or upon the exercise of previously issued stock options.
The Delaware Corporation does not have authorized preferred stock.
The Board of Directors of Foremost and Foremost-Michigan deem it
in the best interests of said corporations and the stockholders of Foremost
to merge Foremost into Foremost-Michigan pursuant to the provisions of the
Michigan Business Corporation Act and Delaware General Corporation Law upon
the terms and conditions set forth in this Plan of Merger.
IN CONSIDERATION of the foregoing and of the agreements,
covenants and provisions contained in this Plan of Merger, the Michigan
Corporation and the Delaware Corporation hereby agree as follows:
ARTICLE I - GENERAL
Foremost and Foremost-Michigan (the "CONSTITUENT CORPORATIONS")
shall be merged into a single corporation, in accordance with the provision
of the laws of the state of Michigan and the state of Delaware by merging
Foremost into Foremost-Michigan, which shall survive the Merger and
thereafter be named "Foremost Corporation of America."
ARTICLE II - THE TRANSACTION
When the Merger shall become effective, all in accordance with,
and as provided in, the provisions of this Plan of Merger and the
applicable provisions of the laws of the state of Michigan and the state of
Delaware (such time being hereinafter referred to as the "EFFECTIVE DATE OF
THE MERGER"):
1. The Constituent Corporation shall be a single corporation which
shall be Foremost-Michigan (the "SURVIVING CORPORATION"), and the separate
existence of Foremost shall cease.
2. The Surviving Corporation shall thereupon and thereafter have all
rights, privileges, immunities and powers and be subject to all the duties
and liabilities of a corporation under Michigan law and shall have and
possess all the rights, privileges, immunities and franchises, public or
private, of each of the Constituent Corporations.
3. All property, real, personal and mixed, all debts due on whatever
account, including subscriptions to shares, all rights of actions and all
other assets or interests of any description of or belonging to or due to
each of the Constituent Corporations shall be deemed to be transferred and
vested in the Surviving Corporation without further act or deed; and the
title to any real estate, or any interest therein, vested in either of the
Constituent Corporations shall not revert or be in any way impaired because
of such Merger.
4. The Surviving Corporation shall be responsible and liable for all
of the liabilities and obligations of each of the Constituent Corporations
and all debts, liabilities and duties of the Constituent Corporations shall
attach to the Surviving Corporation and may be enforced against it to the
same extent as if said debts, liabilities and duties had been incurred
and/or contracted by it; a claim existing or action or proceeding pending
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by or against either of the Constituent Corporations may be prosecuted as
if such Merger had not taken place or the Surviving Corporation may be
substituted in the place of such Constituent Corporation; and the rights of
creditors and any lien upon the property of the Constituent Corporations
shall not be impaired by such Merger.
5. All corporate acts, policies, agreements, arrangements, approvals
and authorizations of the Delaware Corporation, its stockholders, Board of
Directors and committees thereof, officers and agents, which were valid and
effective immediately before the effective date of the Merger shall be
taken for all purposes as the acts, plans, policies, agreements,
arrangements, approvals and authorizations of the Surviving Corporation and
shall be as effective and binding thereon as the same were with respect to
the Delaware Corporation.
6. The employees and agents of Foremost on the effective date of the
Merger shall become the employees and agents of the Surviving Corporation
and continue to be entitled to the same rights and benefits which they
enjoyed as employees and agents of Foremost.
7. The Bylaws of Foremost-Michigan as existing and constituted on
the effective date of the Merger shall be and constitute the Bylaws of the
Surviving Corporation until the same are altered or amended.
8. The directors of Foremost on the effective date of the Merger
shall be and constitute the directors of the Surviving Corporation for the
same terms to which they were elected as directors of Foremost until their
successors are elected in accordance with law and the provisions of the
Articles of Incorporation and Bylaws of the Surviving Corporation.
9. The officers of Foremost in office on the effective date of the
Merger shall be and constitute the officers of the Surviving Corporation
until their successors are elected or they are removed from office by the
Board of Directors of the Surviving Corporation, in accordance with law and
the provisions of the Bylaws of the Surviving Corporation.
10. The stock plans of Foremost, existing on the effective date of
the Merger, including the Nonqualified Stock Option Plan of 1998, the
Nonqualified Stock Option Plan of 1995, the Restricted Stock Plan, the
Directors' Restricted Stock Plan, the Long-Term Incentive Plan and the
Executive Stock Purchase Plan shall be assumed according to their terms by
the Surviving Corporation, and all such stock plans shall constitute stock
plans of the Surviving Corporation.
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ARTICLE III - ARTICLES OF INCORPORATION
On the effective date of Merger, the Articles of Incorporation of
Foremost-Michigan shall be amended as set forth in the Certificate of
Merger filed with the Michigan Corporation, Securities and Land Development
Bureau. From and after the effective date of the Merger, such Articles of
Incorporation, as amended, shall be and constitute the Articles of
Incorporation, as amended, of the Surviving Corporation until the same are
altered or amended.
ARTICLE IV - CONVERSION OF SHARES
The manner and basis of converting the shares of each of the
Constituent Corporations into shares of the Surviving Corporation are as
follows:
1. On the effective date of the Merger, each of the 100 issued and
outstanding shares of Common Stock of Foremost-Michigan, par value $1.00
per share, all owned by Foremost, shall thereupon, and without the
surrender of stock certificates or any other action, be canceled.
2. On the effective date of the Merger, each of the issued and
outstanding shares of Common Stock of the Delaware Corporation, par value
$1.00 per share, shall thereupon, and without the surrender of stock
certificates or any other action, be converted into one fully paid and
nonassessable share of Common Stock, par value $1.00 per share, of the
Surviving Corporation. Each holder of shares of Common Stock of the
Delaware Corporation outstanding immediately before the effective date of
the Merger shall, upon such conversion, hold one share of Common Stock of
the Surviving Corporation for each such share of Common Stock of the
Delaware Corporation held.
3. On the effective date of the Merger, each owner of an outstanding
certificate or certificates evidencing shares of Common Stock of the
Delaware Corporation, par value $1.00 per share, may, but shall not be
required to (except as set forth below), surrender such certificate or
certificates to the Surviving Corporation and, upon such surrender, to
receive in exchange therefor a certificate or certificates evidencing the
number of shares of Common Stock of the Surviving Corporation, par value
$1.00 per share, represented by the surrendered certificate. Until so
surrendered, each outstanding certificate which, before the effective date
of the Merger, evidenced shares of Common Stock of the Delaware Corporation
shall be deemed, for all corporate purposes, to evidence the ownership of
the number of full shares of Common Stock of the Surviving Corporation into
which the shares of the Common Stock represented by such certificates shall
have been converted as aforesaid.
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ARTICLE V - ASSETS AND LIABILITIES
Upon the effective date of the Merger, (1) the respective assets
of the Delaware Corporation and the Michigan Corporation shall be taken up
or continued on the books of the Surviving Corporation in the amounts at
which such assets shall have been carried on their respective books
immediately before the effective date of the Merger, except as provided in
this Plan of Merger with respect to the cancellation of the shares of the
Michigan Corporation outstanding before the effective date of the Merger;
(2) the respective liabilities and reserves of the Delaware Corporation and
the Michigan Corporation (excluding Common Stock, other paid-in capital and
retained earnings) shall be taken up or continued on the books of the
Surviving Corporation in the amounts at which such liabilities and reserves
shall have been carried on their respective books immediately before the
effective date of the Merger; and (3) the Common Stock, other paid-in
capital and retained earnings of the Delaware Corporation shall be taken up
on the books of the Surviving Corporation as Common Stock, other paid-in
capital and retained earnings, respectively, in the amount at which the
same shall be carried on the books of the Delaware Corporation immediately
before the effective date of the Merger.
ARTICLE VI - FURTHER ACTIONS
The Delaware Corporation shall, from time to time, as and when
requested by the Surviving Corporation or its successors or assigns,
execute and deliver or cause to be executed and delivered such deeds,
instruments, assignments or assurances as the Surviving Corporation may
deem necessary or desirable to vest in and confirm to the Surviving
Corporation title to and possession of any property or rights of the
Delaware Corporation acquired or to be acquired by reason of or as a result
of the Merger, or otherwise to carry out the purposes of this Plan of
Merger, and any person who, immediately before the Merger became effective,
was an officer or director of the Delaware Corporation is hereby fully
authorized in the name of the Delaware Corporation to execute any and all
such deeds, instruments, assignments or assurances, or to take any and all
such action.
ARTICLE VII - CONDITIONS PRECEDENT TO MERGER
All obligations of the parties under this Plan of Merger are
subject to the fulfillment (or waiver in writing by a fully authorized
officer of the party entitled to the benefit of the applicable condition)
of each of the following conditions:
1. The holders of a majority of the shares of Common Stock of the
Delaware Corporation must have voted for adoption of the Plan of Merger;
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2. Neither the Delaware Corporation nor the Michigan Corporation
shall be subject to any order, decree or injunction of a court or agency
enjoining or prohibiting the Merger; and
3. The Delaware Corporation and the Michigan Corporation shall have
received any and all such approvals, consents, authorizations and licenses
of all regulatory and other governmental authorities having jurisdiction as
may be required to permit the performance by the Delaware Corporation and
the Michigan Corporation of their respective obligations under this Plan of
Merger and the consummation of the Merger.
ARTICLE VIII - STOCKHOLDER APPROVAL
This Plan of Merger shall be submitted to the stockholders of the
Delaware Corporation as provided by Section 253(a) of the Delaware General
Corporation Law as the same is now in effect and shall take effect, and be
deemed and be taken to be the Plan of Merger of said corporations, upon the
(1) adoption thereof, by the stockholders of the Delaware Corporation in
accordance with the requirements of the laws of the state of Delaware; and
(2) the filing and recording of such documents, and the doing of such acts
and things, as shall be required to accomplish the Merger under the
provisions of the applicable statutes of the states of Michigan and
Delaware.
Anything in this Plan of Merger to the contrary notwithstanding,
this Plan of Merger may, subject to the laws of the states of Michigan and
Delaware, be amended, abandoned or postponed by either of the Constituent
Corporations by appropriate action by their respective Boards of Directors
at any time before the effective date of the Merger for any reason deemed
appropriate by said Boards.
ARTICLE IX - SERVICE OF PROCESS
The Surviving Corporation agrees that it may be served with
process in the state of Delaware in any proceeding for enforcement of any
obligation of the Delaware Corporation, as well as for enforcement of any
obligation of the Surviving Corporation arising from the Merger provided
for in this Plan of Merger, including any suit or other proceeding to
enforce the right (if any) of any stockholder as determined in appraisal
proceedings pursuant to Section 262 of the Delaware General Corporation
Law, and irrevocably appoints the Secretary of State of the state of
Delaware as its agent to accept service of any such process. A copy of any
such process shall be mailed by such Secretary of State to Paul D. Yared,
Foremost Corporation of America, Post Office Box 2450, Grand Rapids,
Michigan 49501.
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ARTICLE X - ABANDONMENT OF MERGER
This Plan of Merger may be terminated and the Merger abandoned at
any time before the effective date of the Merger (notwithstanding that
adoption of this Plan of Merger by the stockholders of the Delaware
Corporation previously may have been obtained) by mutual consent of the
Boards of Directors of the Delaware Corporation and the Michigan
Corporation.
IN WITNESS WHEREOF, each of the Constituent Corporations,
pursuant to authority duly given by resolution adopted by its Board of
Directors, has caused this Plan of Merger to be executed in its name by its
President and Chief Executive Officer and its corporate seal to be affixed
and attested by its Secretary on this _____ day of June, 1998.
FOREMOST CORPORATION OF AMERICA
(a Delaware corporation)
By __________________________________________
Richard L. Antonini
Its President and Chief Executive Officer
ATTEST:
____________________________
Paul D. Yared
Its Secretary
FOREMOST CORPORATION-MICHIGAN
(a Michigan corporation)
By __________________________________________
Richard L. Antonini
Its President and Chief Executive Officer
ATTEST:
____________________________
Paul D. Yared
Its Secretary
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