EXHIBIT 2.2
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
FIRST FORTIS LIFE INSURANCE COMPANY,
THE VOTING TRUSTEES UNDER THAT CERTAIN VOTING TRUST
AGREEMENT DATED JUNE 1, 1999,
FORTIS, INC.,
BANKERS AMERICAN LIFE ASSURANCE COMPANY,
THE VOTING TRUSTEES UNDER THAT CERTAIN VOTING TRUST
AGREEMENT DATED AUGUST 20, 1999
AND
AMERICAN BANKERS INSURANCE GROUP, INC.
DATED AS OF JUNE 29, 2001
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of June
29, 2001, is entered into by and among FIRST FORTIS LIFE INSURANCE COMPANY, a
New York stock life insurance company ("FFLIC"), THE VOTING TRUSTEES (the "FFLIC
Trustees") under that certain Voting Trust Agreement dated June 1, 1999 (the
"FFLIC Trust Agreement"), FORTIS, INC., a Nevada corporation ("Fortis"), BANKERS
AMERICAN LIFE ASSURANCE COMPANY, a New York stock life insurance company
("BALAC"), THE VOTING TRUSTEES (the "BALAC Trustees") under that certain Voting
Trust Agreement dated August 20, 1999 (the "BALAC Trust Agreement"), and
AMERICAN BANKERS INSURANCE GROUP, INC., a Florida corporation ("ABIG").
RECITALS:
WHEREAS, all of the voting rights of 100% of the issued and outstanding
voting stock of BALAC are held by the BALAC Trustees; and
WHEREAS, all of the voting rights of 100% of the issued and outstanding
voting stock of FFLIC are held by the FFLIC Trustees; and
WHEREAS, all of the beneficial and economic rights of 100% of the
issued and outstanding voting stock of FFLIC are held by Fortis; and
WHEREAS, all of the beneficial and economic rights of 100% of the
issued and outstanding voting stock of BALAC are held by ABIG; and
WHEREAS, pursuant to that certain Stock Purchase Agreement dated of
even date herewith by and between FFLIC and ABIG, FFLIC has agreed to purchase
all of ABIG's right, title and interest in and to 100% of the voting stock of
BALAC ; and
WHEREAS, the parties have determined that it is in the best interests
of BALAC and FFLIC to effect an internal reorganization by combining the
operations of BALAC and FFLIC, to be accomplished by merging BALAC with and into
FFLIC immediately following FFLIC's purchase of the BALAC stock from ABIG; and
WHEREAS, the BALAC Trustees, the FFLIC Trustees, Fortis and ABIG have
approved, and deem it advisable to consummate, the merger of BALAC with and into
FFLIC upon the terms and conditions set forth herein.
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.
"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.
"FFLIC Common Stock" means the common stock, $20.00 par value per
share, of FFLIC.
"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.
(b) The capitalized terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
TERM SECTION
"ABIG" 1st Paragraph
"Agreement" 1st Paragraph
"BALAC" 1st Paragraph
"BALAC Trust Agreement" 1st Paragraph
"BALAC Trustees" 1st Paragraph
"Effective Time" 2.5
"FFLIC" 1st Paragraph
"FFLIC Trustees" 1st Paragraph
"FFLIC Trust Agreement 1st Paragraph
"Fortis" 1st Paragraph
"Merger" 2.1
"Surviving Corporation" 2.1
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
THE MERGER
SECTION 2.1 THE MERGER. Subject to the terms and conditions of this
Agreement, and in accordance with the Applicable Laws of the State of New York,
at the Effective Time, BALAC and FFLIC shall consummate a merger (the "Merger")
pursuant to which (a) BALAC shall be merged with and into FFLIC and the separate
corporate existence of BALAC shall thereupon cease; and (b) FFLIC shall be the
successor or surviving corporation in the Merger (sometimes hereinafter referred
to as the "Surviving Corporation") and shall continue to be governed by the
Applicable Laws of the State of New York.
SECTION 2.2 CHARTER. The Charter of FFLIC in effect immediately prior
to the Effective Time, a copy of which is attached hereto as Appendix A, shall
be the Charter of the Surviving Corporation until otherwise amended.
SECTION 2.3 BYLAWS. The Bylaws of FFLIC in effect immediately prior to
the Effective Time, a copy of which is attached hereto as Appendix B, shall be
the Bylaws of the Surviving Corporation until otherwise amended or repealed in
accordance with the terms provided in the proposed charter of the Surviving
Corporation and approved by the Superintendent in accordance with Section 1210
of the New York Insurance Law.
SECTION 2.4 DIRECTORS AND OFFICERS. The directors and officers of FFLIC
in office immediately prior to the Effective Time shall serve as the directors
and officers of the Surviving Corporation from and after the Effective Time in
accordance with the Bylaws of the Surviving Corporation.
SECTION 2.5 EFFECTIVE TIME. As soon as practicable after approval of
this Agreement by the New York Superintendent of Insurance in accordance with
Section 7105 of the New York Insurance Laws, FFLIC and BALAC shall cause a copy
of this Agreement and such approval to be filed in the offices of the clerks of
the counties in which the principal offices of FFLIC and BALAC are located, in
accordance with Section 7108 of the New York Insurance Laws, and the Merger
shall become effective on the last Business Day of the month in which such
filings are made (the "Effective Time").
ARTICLE 3
CONVERSION OF SECURITIES
SECTION 3.1 CONVERSION OF CAPITAL STOCK. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of any
shares of the BALAC Common Stock or holders of any shares of the FFLIC Common
Stock:
(a) BALAC Common Stock. Each issued and outstanding share of
the BALAC Common Stock shall be cancelled.
(b) FFLIC Common Stock. Each issued and outstanding share of
the FFLIC Common Stock shall remain outstanding, unaffected by the Merger.
SECTION 3.2 TERMINATION OF BALAC TRUST AGREEMENT. The parties
acknowledge that the BALAC Trustees are the same individuals as the FFLIC
Trustees, and that the BALAC Trust Agreement has the same terms and conditions
as the FFLIC Trust Agreement. On and after the Effective Time, 100% of the FFLIC
voting stock will continue to be held by the FFLIC Trustees pursuant to the
FFLIC Trust Agreement and, as of the Effective Time, the BALAC Trust Agreement
will no longer be needed and will be terminated in its entirety.
ARTICLE 4
COVENANTS
SECTION 4.1 FURTHER ASSURANCES. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of BALAC, any deeds, bills of
sale, assignments or assurances and to take and do, in the name and on behalf of
BALAC, any other actions and things they may deem desirable to vest, perfect or
confirm of record or otherwise in the Surviving Corporation any and all right,
title and interest in, to and under any of the rights, properties or assets of
BALAC acquired or to be acquired by the Surviving Corporation as a result of, or
in connection with, the Merger.
SECTION 4.2 SHAREHOLDER APPROVAL. The BALAC Trustees, as the only
voting shareholders of BALAC, hereby acknowledge their approval of this
Agreement and the Merger. The FFLIC Trustees, as the only voting shareholders of
FFLIC, hereby acknowledge their approval of this Agreement and the Merger.
ARTICLE 5
COVENANTS
SECTION 5.1 FILINGS; OTHER ACTIONS; NOTIFICATIONS. Each of the parties
hereto shall cooperate with the other parties 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. Each party shall keep
the other parties 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 such party or any of
its 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 Effective Time, each
party (as reasonably requested from time to time by another party) 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 THE MERGER
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 the Effective Time 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 Stock Purchase Agreement dated of even date
herewith by and between BALAC and Fortis.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time (notwithstanding
the approval of this Agreement by the Voting Trustees as the only voting
shareholders) by written consent of all parties hereto.
SECTION 7.2 EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and the abandonment of the Merger 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:
FFLIC 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
Voting Trustees: FFLIC and BALAC Voting Trustees
c/o Fortis, Inc.
One Chase Manhattan Plaza
New York, NY 10005
Attention: Katherine Greenzang
Fax: 212-859-7034
Phone: 212-859-7021
BALAC, ABIG Fortis, Inc.
or Fortis: One Chase Manhattan Plaza
New York, NY 10005
Attention: Katherine Greenzang
Fax: 212-859-7034
Phone: 212-859-7021
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.
[SIGNATURES BEGIN ON NEXT PAGE]
IN WITNESS WHEREOF, each of the parties, pursuant to the authority duly
given by their respective Boards of Directors, and consistent with the approvals
of the merger by their respective Voting Trustees, have caused this Agreement to
be executed as of the day and year first above written.
FIRST FORTIS LIFE INSURANCE
COMPANY
Attest: By:
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Name:
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Secretary
[Corporate Seal] Title:
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BANKERS AMERICAN LIFE
ASSURANCE COMPANY
By:
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Attest:
Name:
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Secretary Title:
[Corporate Seal] ----------------------------------
BALAC TRUST:
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J. Kerry Clayton, as Proxy for the
Voting Trustees, pursuant to the Proxy
dated August 20, 1999 and signed by
J.L.M. Bartelds, H.J. Hielkema, and
B.J.H.S. Feilzer
FFLIC TRUST:
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J. Kerry Clayton, as Proxy for the
Voting Trustees, pursuant to the Proxy
dated August 20, 1999 and signed by
J.L.M. Bartelds, H.J. Hielkema, and
B.J.H.S. Feilzer
AMERICAN BANKERS INSURANCE
GROUP, INC.
By:
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Attest:
Name:
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Secretary Title:
[Corporate Seal] -------------------------------
FORTIS, INC.
By:
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Attest:
Name:
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Secretary Title:
[Corporate Seal] -------------------------------