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EXHIBIT 10.8
PLAN AND AGREEMENT OF MERGER
This Plan and Agreement of Merger ("Agreement") is entered into
between AMERICAN LIBERTY LIFE INSURANCE COMPANY, a stock insurance company
organized under the laws of the State of Louisiana ("ALLIC"), and CITIZENS
INSURANCE COMPANY OF AMERICA, a stock insurance company organized under the
laws of the State of Colorado ("CICA").
WITNESSETH
WHEREAS, ALLIC and CICA, as indirect wholly owned subsidiaries of a
common parent corporation, desire to streamline operations and corporate
structure by merging ALLIC into CICA;
NOW, THEREFORE, the parties agree as follows.
ARTICLE I
The Merger
1.1 Subject to the terms and conditions set forth herein, ALLIC
will be merged into CICA (the "Merger") with CICA being the corporation
surviving the Merger (the "Surviving Corporation"). The Articles of Merger and
Certificate of Merger, in the forms attached hereto subject to any
modifications as may be authorized or required in accordance with applicable
law (collectively the "Merger Filings"), shall be completed, executed and filed
as contemplated by this Agreement as soon as possible after all regulatory and
shareholder approvals are obtained in accordance with law.
1.2 The effect of the Merger shall be as follows:
(i) The Merger shall become effective (the
"Effective Time") upon the later of (i) the approval and
filing of the Merger Filings by and with the Departments
of Insurance and Secretaries of State of Colorado and
Louisiana, or (ii) the time and date specified in such
Merger Filings.
(ii) The Articles of Incorporation and Bylaws of
CICA shall be the Articles of Incorporation and Bylaws
of the Surviving Corporation. The directors and officers
of CICA shall be the directors and officers of the
Surviving Corporation.
(iii) At and as of the Effective Time, (a) all
treasury and outstanding shares of capital stock of
ALLIC shall be canceled regardless of actual surrender
of the certificates therefor, and (b) all treasury and
outstanding shares of capital stock of CICA shall remain
unchanged in all respects.
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1.3 This Agreement is subject in all respects to the provisions of
the applicable insurance laws and shall not become effective until approval is
obtained from the Departments of Insurance of the States of Colorado and
Louisiana in accordance with the provisions of the laws of said states.
Subject to such approval, this Agreement shall be effective for accounting
purposes as of 12:01 a.m., on January 1, 1997.
ARTICLE III
Pre-Merger Obligations
3.1 As soon as practicable, the parties shall file with the
Departments of Insurance in Colorado and Louisiana all of the documents
required by applicable law.
3.2 At the earliest practicable date therefor without objection by
applicable governmental authorities, this Agreement shall be duly submitted to
vote by the shareholders of the parties to the extent and in the manner
required by applicable law.
ARTICLE IV
Conditions to the Merger
The following are conditions precedent to the Merger:
4.1 This Agreement and the transactions contemplated herein shall
have been duly and validly authorized, approved and adopted at meetings of the
shareholders of CICA and ALLIC to the extent required by, and in accordance
with, the applicable laws.
4.2 This Agreement and the transactions contemplated herein shall
have been approved by the Departments of Insurance of the States of Colorado
and Louisiana in accordance with the provisions of the laws of said states.
4.3 No action, suit or proceeding shall have been instituted or
shall have been threatened before any court or other governmental body or by
any public authority to restrain, enjoin or prohibit the transactions
contemplated herein, or which might subject any of the parties hereto or their
directors or officers to any material liability, fine, forfeiture or penalty on
the grounds that the transactions contemplated hereby, the parties hereto or
their directors or officers, have violated any applicable law or regulation, or
have otherwise acted improperly in connection with the transactions
contemplated hereby.
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ARTICLE V
Termination and Amendment
Subject to compliance with applicable laws, at any time (whether
before or after approval by shareholders of ALLIC and/or CICA):
5.1 The Board of Directors of CICA or ALLIC may terminate this
Agreement.
5.2 The Board of Directors of CICA or ALLIC may amend the terms
and conditions of this Agreement and/or the exhibits hereto.
ARTICLE VI
Miscellaneous
6.1 The Surviving Corporation may take any action (including
executing and delivering any document) after the Effective Time in the name and
on behalf of either CICA or ALLIC in order to carry out and effectuate the
transactions contemplated by this Agreement.
6.2 This Agreement embodies the entire agreement between the
parties, and there have been and are no agreements, representations or
warranties among the parties other than those set forth herein or those
provided for herein. Any reference to federal, state, local, or foreign
statutes or laws shall be deemed also to refer to all rules and regulations
promulgated thereunder unless the context otherwise requires. The word
"including" shall mean including without limitation. The exhibits identified in
this Agreement are incorporated herein by reference and made a part hereof. To
facilitate the execution of this Agreement, any number of counterparts hereof
may be executed, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
instrument. Each of the parties hereto will pay its own fees and expenses
incurred in connection with the transactions contemplated by this Agreement.
6.3 This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Colorado without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Colorado or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Colorado.
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IN WITNESS WHEREOF, the parties have set their hands and seals this 22nd
day of November, 1996.
CITIZENS INSURANCE COMPANY AMERICAN LIBERTY LIFE
OF AMERICA INSURANCE COMPANY
By: /s/ HAROLD E. RILEY By: /s/ HAROLD E. RILEY
Harold E. Riley, Chairman Harold E. Riley, President
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CERTIFICATE OF MERGER
Pursuant to the provisions of the Louisiana Business Corporation Law,
AMERICAN LIBERTY LIFE INSURANCE COMPANY, a stock insurance company organized
under the laws of the State of Louisiana ("ALLIC"), and CITIZENS INSURANCE
COMPANY OF AMERICA, a stock insurance company organized under the laws of the
State of Colorado ("CICA"), adopt the following Certificate of Merger:
First: In accordance with Section 12:112 of the Louisiana Business
Corporation Law, a plan and agreement of merger has been approved, adopted,
certified, executed and acknowledged by ALLIC and CICA.
Second: At and as of the effective time set forth below, (a) ALLIC will
be merged into CICA with CICA being the corporation surviving the merger (the
"Surviving Corporation"), (b) all treasury and outstanding shares of capital
stock of ALLIC shall be canceled regardless of actual surrender of the
certificates therefor, and (c) all treasury and outstanding shares of capital
stock of CICA shall remain unchanged in all respects.
Third: The Articles of Incorporation of CICA shall be the Articles of
Incorporation of the Surviving Corporation.
Fourth: The executed plan and agreement of merger is on file at
Surviving Corporation's principal place of business located at 400 East
Anderson Lane, Austin, Texas 78752. A copy of the plan and agreement of merger
will be furnished by CICA, on request and without cost, to any shareholder of
any corporation that is a party to the merger.
Fifth: The merger will become effective on January 1, 1997 at 12:01 a.m.
unless the merger is abandoned and a statement of abandonment is filed in
accordance with applicable law.
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IN WITNESS WHEREOF, the undersigned officers of each corporation, duly
authorized by the Boards of Directors of each corporation, have signed this
Certificate of Merger as of November 22, 1996.
WITNESSES: CITIZENS INSURANCE COMPANY OF AMERICA
By: /s/ HAROLD E. RILEY
Harold E. Riley, Chairman
AMERICAN LIBERTY LIFE INSURANCE
COMPANY
By: /s/ HAROLD E. RILEY
Harold E. Riley, President
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CERTIFICATE OF SECRETARY
The undersigned duly elected and qualified Secretary of American Liberty
Life Insurance Company does hereby certify that the plan and agreement of
merger referred to herein, after being first duly signed by the President on
behalf of American Liberty Life Insurance Company, as authorized by its Board
of Directors, was approved by the shareholder of the merged corporation in the
manner required by the Louisiana Business Corporation Law.
AMERICAN LIBERTY LIFE INSURANCE
COMPANY
November 22, 1996 By:
---------------------------------
Mark A. Oliver, Secretary
CERTIFICATE OF SECRETARY
The undersigned duly elected and qualified Secretary of Citizens
Insurance Company of America does hereby certify that the plan and agreement of
merger referred to herein was duly signed by the Chairman on behalf of Citizens
Insurance Company of America, as authorized by its Board of Directors. As the
surviving corporation, shareholder approval was not required due to
satisfaction of all conditions of Section 12:112E(1) of the Louisiana Business
Corporation Law.
CITIZENS INSURANCE COMPANY OF AMERICA
November 22, 1996 By:
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Mark A. Oliver, Secretary
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SIGNATURE OF OFFICERS
Pursuant to the Louisiana Business Corporation Law, the undersigned,
Harold E. Riley, the duly elected and qualified President of American Liberty
Life Insurance Company, hereby executes this Certificate of Merger on behalf of
American Liberty Life Insurance Company.
AMERICAN LIBERTY LIFE INSURANCE COMPANY
November 22, 1996 By:
------------------------------------------
Harold E. Riley, President, President
STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME, the undersigned authority, personally came and appeared,
Harold E. Riley, duly authorized to act on behalf of American Liberty Life
Insurance Company, who declared he is duly authorized and did execute the
foregoing Certificate of Merger on behalf of American Liberty Life Insurance
Company.
IN WITNESS WHEREOF, the appearer, witnesses and I have hereunto affixed
our signatures on November 22, 1996.
WITNESSES: AMERICAN LIBERTY LIFE INSURANCE
COMPANY
By:
- ------------------------ Harold E. Riley, President
- ------------------------
-----------------------------------
Bridget Cantwell, Notary Public
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SIGNATURE OF OFFICERS
Pursuant to the Louisiana Business Corporation Law, the undersigned,
Harold E. Riley, the duly elected and qualified Chairman of Citizens Insurance
Company of America, hereby executes this Certificate of Merger on behalf of
Citizens Insurance Company of America.
CITIZENS INSURANCE COMPANY OF AMERICA
November 22, 1996 By:
------------------------------------
Harold E. Riley, Chairman
STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME, the undersigned authority, personally came and appeared,
Harold E. Riley, duly authorized to act on behalf of Citizens Insurance Company
of America, who declared he is duly authorized and did execute the foregoing
Certificate of Merger on behalf of Citizens Insurance Company of America.
IN WITNESS WHEREOF, the appearer, witnesses and I have hereunto affixed
our signatures on November 22, 1996.
WITNESSES: CITIZENS INSURANCE COMPANY OF AMERICA
By:
- ------------------------ Harold E. Riley, Chairman
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-----------------------------------
Bridget Cantwell, Notary Public
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ARTICLES OF MERGER
Pursuant to the provisions of the Colorado Business Corporation Act (the
"Act"), AMERICAN LIBERTY LIFE INSURANCE COMPANY, a stock insurance company
organized under the laws of the State of Louisiana ("ALLIC"), and CITIZENS
INSURANCE COMPANY OF AMERICA, a stock insurance company organized under the
laws of the State of Colorado ("CICA"), adopt the following Articles of Merger:
First: In accordance with Section 7-111-103 of the Act, a plan and
agreement of merger has been approved, adopted and executed by ALLIC and CICA.
Second: Pursuant to Section 7-111-103(7) of the Act, approval by the
shareholders of CICA, the surviving corporation, is not required. The plan and
agreement of merger was approved by the shareholders of ALLIC with the number
of votes cast for the plan by each voting group entitled to vote separately on
the merger being sufficient for approval by that voting group.
Third: At and as of the effective time set forth below, (a) ALLIC will
be merged into CICA with CICA being the corporation surviving the merger (the
"Surviving Corporation"), (b) all treasury and outstanding shares of capital
stock of ALLIC shall be canceled regardless of actual surrender of the
certificates therefor, and (c) all treasury and outstanding shares of capital
stock of CICA shall remain unchanged in all respects.
Fourth: The Articles of Incorporation of CICA shall be the Articles of
Incorporation of the Surviving Corporation.
Fifth: The merger shall become effective on January 1, 1997 at 12:01
a.m. unless prior to such time the merger is abandoned and a statement of
abandonment is filed in accordance with applicable law.
Dated: November 22, 1996
CITIZENS INSURANCE COMPANY AMERICAN LIBERTY LIFE OF AMERICA
INSURANCE COMPANY
By: By:
Harold E. Riley, Chairman Harold E. Riley, President
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AMENDMENT NO. 1 TO
PLAN AND AGREEMENT OF MERGER
This Amendment No. 1 ("Amendment") to the Plan and Agreement of Merger
("Agreement") is entered into between AMERICAN LIBERTY LIFE INSURANCE COMPANY,
a stock insurance company organized under the laws of the State of Louisiana
("ALLIC"), and CITIZENS INSURANCE COMPANY OF AMERICA, a stock insurance company
organized under the laws of the State of Colorado ("CICA").
WITNESSETH
WHEREAS, Article V of the Agreement permits the CICA and ALLIC Boards
of Directors to amend the terms and conditions of the Agreement and the
exhibits thereto;
NOW, THEREFORE, the parties agree as follows.
1. AMENDMENT OF SECTION 1.2. Sections 1.2(i) is amended in its
entirety to read as follows:
"(i) For accounting purposes, the effective time ("Effective Time") of
the Merger shall be as of 12:01 a.m., on January 1, 1997."
2. DELETION OF SECTION 1.3. Section 1.3 is deleted.
3. AMENDMENT OF CERTIFICATE OF MERGER AND ARTICLES OF MERGER. The
Articles and Certificate of Merger are amended to (i) delete all provisions
defining the effective time of the merger, (ii) delete all existing date
references, and (iii) adopt the forms of Articles and Certificate of Merger
incorporating such changes as are attached hereto.
4. SCOPE OF AMENDMENT. This Amendment embodies all of the
changes to the Agreement as of the date hereof. Except as modified hereby, the
Agreement remains in full force and effect. To facilitate execution, any
number of counterparts hereof may be executed, and each such counterpart shall
be deemed to be an original instrument, but all such counterparts together
shall constitute but one instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
February 12, 1997.
CITIZENS INSURANCE COMPANY AMERICAN LIBERTY LIFE
OF AMERICA INSURANCE COMPANY
By: /s/ HAROLD E. RILEY By: /s/ HAROLD E. RILEY
Harold E. Riley, Chairman Harold E. Riley, President
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CERTIFICATE OF MERGER
Pursuant to the provisions of the Louisiana Business Corporation Law,
AMERICAN LIBERTY LIFE INSURANCE COMPANY, a stock insurance company organized
under the laws of the State of Louisiana ("ALLIC"), and CITIZENS INSURANCE
COMPANY OF AMERICA, a stock insurance company organized under the laws of the
State of Colorado ("CICA"), adopt the following Certificate of Merger:
First: In accordance with Section 12:112 of the Louisiana Business
Corporation Law, a plan and agreement of merger has been approved, adopted,
certified, executed and acknowledged by ALLIC and CICA.
Second: At and as of the effective time set forth below, (a) ALLIC will
be merged into CICA with CICA being the corporation surviving the merger (the
"Surviving Corporation"), (b) all treasury and outstanding shares of capital
stock of ALLIC shall be canceled regardless of actual surrender of the
certificates therefor, and (c) all treasury and outstanding shares of capital
stock of CICA shall remain unchanged in all respects.
Third: The Articles of Incorporation of CICA shall be the Articles of
Incorporation of the Surviving Corporation.
Fourth: The executed plan and agreement of merger is on file at
Surviving Corporation's principal place of business located at 400 East
Anderson Lane, Austin, Texas 78752. A copy of the plan and agreement of merger
will be furnished by CICA, on request and without cost, to any shareholder of
any corporation that is a party to the merger.
Dated: ____________________, 1997
CITIZENS INSURANCE COMPANY AMERICAN LIBERTY LIFE
OF AMERICA INSURANCE COMPANY
By: By:
Harold E. Riley, Chairman Harold E. Riley, President
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CERTIFICATE OF SECRETARY
The undersigned duly elected and qualified Secretary of American Liberty
Life Insurance Company does hereby certify that the plan and agreement of
merger referred to herein, after being first duly signed by the President on
behalf of American Liberty Life Insurance Company, as authorized by its Board
of Directors, was approved by the shareholder of the merged corporation in the
manner required by the Louisiana Business Corporation Law.
AMERICAN LIBERTY LIFE INSURANCE COMPANY
, 1997 By:
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Mark A. Oliver, Secretary
CERTIFICATE OF SECRETARY
The undersigned duly elected and qualified Secretary of Citizens
Insurance Company of America does hereby certify that the plan and agreement of
merger referred to herein was duly signed by the Chairman on behalf of Citizens
Insurance Company of America, as authorized by its Board of Directors. As the
surviving corporation, shareholder approval was not required due to
satisfaction of all conditions of Section 12:112E(1) of the Louisiana Business
Corporation Law.
CITIZENS INSURANCE COMPANY OF AMERICA
, 1997 By:
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Mark A. Oliver, Secretary
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SIGNATURE OF OFFICERS
Pursuant to the Louisiana Business Corporation Law, the undersigned,
Harold E. Riley, the duly elected and qualified President of American Liberty
Life Insurance Company, hereby executes this Certificate of Merger on behalf of
American Liberty Life Insurance Company.
AMERICAN LIBERTY LIFE INSURANCE COMPANY
, 1997 By:
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Harold E. Riley, President
STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME, the undersigned authority, personally came and appeared,
Harold E. Riley, duly authorized to act on behalf of American Liberty Life
Insurance Company, who declared he is duly authorized and did execute the
foregoing Certificate of Merger on behalf of American Liberty Life Insurance
Company.
IN WITNESS WHEREOF, the appearer, witnesses and I have hereunto affixed
our signatures on __________, 1997.
WITNESSES: AMERICAN LIBERTY LIFE INSURANCE
COMPANY
By:
- ------------------------ Harold E. Riley, President
- ------------------------
-----------------------------------
Bridget Cantwell, Notary Public
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SIGNATURE OF OFFICERS
Pursuant to the Louisiana Business Corporation Law, the undersigned,
Harold E. Riley, the duly elected and qualified Chairman of Citizens Insurance
Company of America, hereby executes this Certificate of Merger on behalf of
Citizens Insurance Company of America.
CITIZENS INSURANCE COMPANY OF AMERICA
, 1997 By:
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Harold E. Riley, Chairman
STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME, the undersigned authority, personally came and appeared,
Harold E. Riley, duly authorized to act on behalf of Citizens Insurance Company
of America, who declared he is duly authorized and did execute the foregoing
Certificate of Merger on behalf of Citizens Insurance Company of America.
IN WITNESS WHEREOF, the appearer, witnesses and I have hereunto affixed
our signatures on __________, 1997.
WITNESSES: CITIZENS INSURANCE COMPANY OF AMERICA
By:
- ------------------------ Harold E. Riley, Chairman
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Bridget Cantwell, Notary Public
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ARTICLES OF MERGER
Pursuant to the provisions of the Colorado Business Corporation Act (the
"Act"), AMERICAN LIBERTY LIFE INSURANCE COMPANY, a stock insurance company
organized under the laws of the State of Louisiana ("ALLIC"), and CITIZENS
INSURANCE COMPANY OF AMERICA, a stock insurance company organized under the
laws of the State of Colorado ("CICA"), adopt the following Articles of Merger:
First: In accordance with Section 7-111-103 of the Act, a plan and
agreement of merger has been approved, adopted and executed by ALLIC and CICA.
Second: Pursuant to Section 7-111-103(7) of the Act, approval by the
shareholders of CICA, the surviving corporation, is not required. The plan and
agreement of merger was approved by the shareholders of ALLIC with the number
of votes cast for the plan by each voting group entitled to vote separately on
the merger being sufficient for approval by that voting group.
Third: At and as of the effective time set forth below, (a) ALLIC will
be merged into CICA with CICA being the corporation surviving the merger (the
"Surviving Corporation"), (b) all treasury and outstanding shares of capital
stock of ALLIC shall be canceled regardless of actual surrender of the
certificates therefor, and (c) all treasury and outstanding shares of capital
stock of CICA shall remain unchanged in all respects.
Fourth: The Articles of Incorporation of CICA shall be the Articles of
Incorporation of the Surviving Corporation.
Dated: ____________________, 1997
CITIZENS INSURANCE COMPANY AMERICAN LIBERTY LIFE
OF AMERICA INSURANCE COMPANY
By: By:
Harold E. Riley, Chairman Harold E. Riley, President
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