EXHIBIT 2.1
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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
FIRST FORTIS LIFE INSURANCE COMPANY
AND
AMERICAN BANKERS INSURANCE GROUP, INC.
DATED AS OF JUNE 29, 2001
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June 29,
2001, is entered into by and between AMERICAN BANKERS INSURANCE GROUP, INC., a
Florida corporation ("Seller"), and FIRST FORTIS LIFE INSURANCE COMPANY, a New
York stock life insurance company ("Buyer").
RECITALS:
WHEREAS, Seller is the beneficial, but not the record or voting, owner
of 100% of the issued and outstanding shares of common stock, par value $1.00
per share, of Bankers American Life Assurance Company, a New York stock life
insurance company ("BALAC"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, all of Seller's right, title and interest in and to such shares of
BALAC;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS.
(a) The following capitalized terms shall have the respective meanings
set forth below:
"Applicable Law" means any domestic or foreign federal, state or local
statute, law, ordinance, rule, administrative interpretation, regulation, order,
judgment or decree applicable to the parties hereto.
"BALAC Common Stock" means the common stock, par value $1.00 per share,
of BALAC.
"Business Day" means any day other than a Saturday, Sunday, a day on
which banking institutions in the State of New York are permitted or obligated
by Applicable Law to be closed or a day on which the New York Stock Exchange is
closed for trading.
"Closing" means the consummation of the transactions contemplated by
this Agreement.
"Closing Date" means the date on which the Closing actually occurs.
"Code" means the Internal Revenue Code of 1986, as amended. Any
citation to a provision of the Code includes a citation to any successor
provision.
"Governmental Authority" means any federal, state, county, local,
foreign or other governmental or public agency, instrumentality, commission,
authority, board or body.
"Order" means any administrative decision or award, decree, injunction,
judgment, order, quasi-judicial decision or award, ruling, or writ of any
Governmental Authority, or any binding determination pursuant to arbitration or
other similar alternative dispute resolution forum.
"Person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company, trust,
estate, unincorporated organization, governmental, judicial or regulatory body,
business unit, division or other entity.
"Shares" means all of the presently issued and standing 2,000,000
shares of BALAC Common Stock, of which record and voting ownership is held
pursuant to the Trust Agreement, and of which beneficial ownership is held by
ABIG pursuant to the Voting Trust Certificate.
"Trust Agreement" means that certain Voting Trust Agreement dated
August 20, 1999 by and among Fortis, Inc., and each of the Voting Trustees named
therein.
"Voting Trust Certificate" means that certain Voting Trust Certificate
dated August 20, 1999, certifying that ABIG is the sole beneficial owner of the
Shares.
(b) The capitalized terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
TERM SECTION
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"Agreement" 1st Paragraph
"BALAC" 1st Recital
"Buyer" 1st Paragraph
"Purchase Price" 2.2
"Seller" 1st Paragraph
"Termination Date" 7.2
SECTION 1.2 SINGULAR AND PLURAL. Any singular term in this Agreement
shall be deemed to include the plural, and any plural term the singular.
ARTICLE 2
PURCHASE AND SALE OF STOCK
SECTION 2.1 PURCHASE AND SALE OF STOCK. On the Closing Date, upon the
terms and subject to the conditions of this Agreement, Seller shall sell to
Buyer, and Buyer shall purchase, all of Seller's right, title and interest in
and to the Shares.
SECTION 2.2 PURCHASE PRICE. On the Closing Date, upon the terms and
subject to the conditions of this Agreement, Buyer shall pay to Seller the sum
of Thirty-Two Million One Hundred Fifteen Thousand One Hundred Ten Dollars
($32,115,110) in cash (the "Purchase Price") as consideration for all of
Seller's right, title and interest in and to the Shares.
SECTION 2.3 PLACE AND DATE OF CLOSING; CLOSING DELIVERIES.
(a) The Closing shall take place at the offices of Fortis, Inc., One
Chase Manhattan Plaza, 41st Floor, New York, New York 10005, at 10:00 a.m.
Eastern Time on the Business Day following the satisfaction or waiver of the
conditions to Closing set forth in Section 6.1 of this Agreement, or on such
other date as the parties may agree to in writing. Subject to completion, the
Closing shall be deemed effective as of 12:01 a.m. on the Closing Date.
(b) At the Closing, Seller shall execute and/or deliver to Buyer, the
following:
(i) the Voting Trust Certificate, duly endorsed for
transfer to Buyer; and
(ii) the documents and instruments specified in
Article 6.
(c) At the Closing, Buyer shall execute and/or deliver to Seller the
following:
(i) the cash Purchase Price as contemplated by
Section 2.2; and
(ii) the documents and instruments specified in
Article 6.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
SECTION 3.1 CORPORATE EXISTENCE AND POWER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Florida and has all corporate powers required to carry on its business as now
conducted.
SECTION 3.2 AUTHORITY. Seller has all requisite power and authority to
execute and deliver, and to perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Seller of this Agreement and the performance of its obligations hereunder, have
been duly authorized by all necessary corporate action on the part of Seller.
This Agreement has been duly executed
and delivered by Seller and, subject to the due execution and delivery by Buyer,
this Agreement will, upon due execution and delivery, be a valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
except as (i) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, and (ii) the availability of equitable remedies may
be limited by equitable principles of general applicability.
SECTION 3.3 CAPITALIZATION. The authorized capital stock of BALAC
consists of 2,000,000 shares of BALAC Common Stock. As of the date hereof there
are, and as of the Closing Date there will be, 2,000,000 of such shares issued
and outstanding. The Shares have been duly authorized and validly issued and are
fully paid and non-assessable.
SECTION 3.4 OWNERSHIP OF SHARES. Seller is the beneficial, but not the
record or voting, owner of the Shares, free and clear of any Liens and any
limitation or restriction (other than as set forth in the Trust Agreement or the
Voting Trust Certificate) and such Shares constitute 100% of the issued and
outstanding shares of BALAC. Seller will transfer and deliver to Buyer at the
Closing valid title to the Voting Trust Certificate and all of Seller's right,
title and interest in and to the Shares, free and clear of any Liens and any
such limitation or restriction (other than as set forth in the Trust Agreement
or the Voting Trust Certificate).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
SECTION 4.1 CORPORATE EXISTENCE AND POWER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and has all corporate powers required to carry on its business as now
conducted.
SECTION 4.2 AUTHORITY. Buyer has all requisite power and authority to
execute and deliver, and to perform its obligations under this Agreement and to
consummate the transactions contemplated hereby, and the performance by Buyer of
its obligations under this Agreement have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer, and subject to the due execution and delivery by Seller
will, upon due execution and delivery, be a valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, except as (i) the
enforceability hereof may be limited by bankruptcy, insolvency, moratorium or
other similar Applicable Laws affecting the enforcement of creditors' rights
generally, and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
SECTION 4.3 INVESTMENT INTENT. Buyer is acquiring the Shares for its
own account and not with a view to their distribution within the meaning of
Section 2(11) of the Securities Act. Buyer is an "accredited investor" as such
term is defined in Rule 501 of Regulation D of the Securities Act of 1933, as
amended.
ARTICLE 5
COVENANTS
SECTION 5.1 FILINGS; OTHER ACTIONS; NOTIFICATIONS. Seller and Buyer
shall cooperate with each other and use (and shall cause their respective
affiliates to use) all commercially reasonable efforts to do or cause to be done
all things necessary, proper or advisable on its part under this Agreement and
Applicable Laws to consummate and make effective the transactions contemplated
by this Agreement as soon as practicable, including, without limitation,
preparing and filing as promptly as practicable all documentation to effect all
necessary notices, reports and other filings. Seller and Buyer each shall keep
the other apprised of the status of matters relating to completion of the
transactions contemplated hereby, including promptly furnishing the other with
copies of notices or other communications received by Seller or Buyer, as the
case may be, or any of their affiliates, from any third party or Governmental
Authority with respect to the transactions contemplated by this Agreement.
SECTION 5.2 FURTHER ASSURANCES. On and after the Closing Date, Seller
(as reasonably requested from time to time by Buyer) and Buyer (as reasonably
requested from time to time by Seller) shall take all reasonably appropriate
action and execute any additional documents, instruments or conveyances of any
kind (not containing additional representations and warranties) which may be
reasonably necessary to carry out any of the provisions of this Agreement.
SECTION 5.3 EXPENSES. Except as otherwise specifically provided in this
Agreement, the parties to this Agreement shall bear their respective expenses
incurred in connection with the preparation, execution and performance of this
Agreement and the transactions contemplated hereby, including, without
limitation, all fees and expenses of agents, representatives, counsel,
investment bankers, actuaries and accountants.
ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each party to consummate the transactions contemplated hereby are
subject to the fulfillment prior to or at Closing of the following conditions,
unless waived by both parties in writing:
(a) No Applicable Law or Order shall be in effect that prohibits or
enjoins, and no litigation, action or other proceeding shall be pending that
seeks to prohibit or enjoin or that seeks material monetary damages with respect
to, the consummation of the transactions contemplated hereby.
(b) Approval shall have been obtained from the New York Superintendent
of Insurance for the transactions contemplated hereby and for the transactions
contemplated by that certain Agreement and Plan of Merger dated of even date
herewith by and among
Buyer, BALAC, American Bankers Insurance Group, Inc., the Voting Trustees under
the Trust Agreement, and the Voting Trustee under that certain Voting Trust
Agreement related to FFLIC dated June 1, 1999.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing Date by mutual written consent of Seller and Buyer.
SECTION 7.2 EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and the abandonment of the transactions pursuant
to this Article 7, this Agreement shall become void and of no effect with no
liability on the part of any party hereto (or of any of its representatives).
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. Except as
otherwise expressly provided herein, this Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement between the
parties with respect to the transactions contemplated hereby and supersedes all
prior arrangements or understandings with respect thereto, written or oral.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
person or entity, other than the parties or their respective successors, any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
SECTION 8.2 AMENDMENTS. To the extent permitted by Applicable Law, this
Agreement may be amended by a subsequent writing signed by all parties.
SECTION 8.3 NOTICES. All notices or other communications that are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by certified mail, postage pre-paid, or by
courier or overnight carrier, to the Persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
Seller: American Bankers Insurance Group, Inc.
c/o Fortis, Inc.
One Chase Manhattan Plaza
New York, NY 10005
Attention: Katherine Greenzang
Fax: 212-859-7034
Phone: 212-859-7021
Buyer: First Fortis Life Insurance Company
308 Maltbie Street
Syracuse, NY 13204
Attention: Terry J. Kryshak
Fax: 315-453-2343
Phone: 800-745-7100 x. 8600
SECTION 8.4 GOVERNING LAW. Notwithstanding the place where this
Agreement may be executed by any of the parties, the parties expressly agree
that this Agreement shall in all respects be governed by, and construed in
accordance with, the Applicable Laws of the State of New York.
SECTION 8.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
SECTION 8.6 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
SECTION 8.7 SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
SECTION 8.8 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AMERICAN BANKERS INSURANCE
GROUP, INC.
By:
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Attest:
Name:
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Secretary Title:
[Corporate Seal] -----------------------------------
FIRST FORTIS LIFE INSURANCE
COMPANY
By:
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Attest:
Name:
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Secretary Title:
[Corporate Seal] -----------------------------------