EXHIBIT A AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
EXHIBIT
A
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
Agreement and Plan of Merger (this
“Agreement”),
dated as of January 26, 2011, by and among 21st Century
Holding Company, a Florida corporation (“Parent”), Federated
National Insurance Company, a Florida corporation and wholly-owned subsidiary of
Parent (“Target”), and
American Vehicle Insurance Company, a Florida Corporation and wholly-owned
subsidiary of Parent (“Company”).
RECITALS
WHEREAS, the boards of
directors of PARENT, TARGET, and COMPANY have each duly approved and adopted
this Agreement and proposed merger of TARGET with and into COMPANY pursuant to
the terms and conditions of this Agreement and in accordance with the Florida
Business Corporation Act (the “Florida
Act”);
WHEREAS, PARENT as the sole
shareholder of TARGET and COMPANY, has duly approved and adopted this Agreement
and the proposed merger of TARGET with and into COMPANY pursuant to the terms
and conditions of this Agreement and in accordance with the Florida
Act;
WHEREAS, pursuant to the
merger of TARGET with and into the COMPANY, among other things, each issued and
outstanding share of common stock, par value $1.00 per share, of TARGET (the
“Target Common
Stock”) will be surrendered in the manner set forth in Article 2 hereof,
upon the terms and subject to the conditions set forth in this Agreement and in
the Florida Act (collectively, the “Merger”);
WHEREAS, as a result of
consummation of the Merger, (a) the separate existence of TARGET will cease, and
(b) COMPANY will be the surviving corporation and will remain a wholly-owned
subsidiary of PARENT;
WHEREAS, the effectiveness of
the Merger is subject to the satisfaction of certain conditions, including the
approval of the Florida Department of Financial Services, Office of Insurance
Regulation (“OIR”).
NOW, THEREFORE, in
consideration of the mutual benefits to be derived from this Agreement and
representations, warranties, covenants, agreements, conditions and promises
contained herein, the parties hereby agree as follows:
ARTICLE
1
GENERAL
1.1 The
Merger. In accordance with the provisions of this Agreement and the
Florida Act, TARGET shall be merged with and into the COMPANY.
1.2 The
Effective Time of Merger. The Merger shall become effective (the “Effective Time”) upon
acceptance for filing of the Articles of Merger (as defined in section 4.2(a))
by the Secretary of State of the State of Florida.
1.3 Effect of
Merger. At the Effective Time, (a) the separate existence of TARGET shall
cease, (b) TARGET shall be merged with and into COMPANY, (c) COMPANY shall be
the surviving corporation (the “Surviving
Corporation”), (d) the name of the Surviving Corporation shall be changed
to “Federated National Insurance Company”; (e) the Surviving Corporation shall
possess all the rights, privileges and powers of TARGET, (f) the title to all
real estate and other property, or any interest therein, owned by TARGET shall
be vested in the Surviving Corporation without reversion or impairment, (g) the
Surviving Corporation shall thenceforth be responsible and liable for all the
liabilities and obligations of the TARGET, (h) any claim existing or action or
proceeding pending by or against TARGET may be continued as if the Merger did
not occur or the Surviving Corporation may be substituted in the proceeding for
TARGET, and (i) neither the right of creditors nor any liens upon the property
of TARGET or COMPANY shall be impaired by the Merger, all as provided in Section
607.1106 of the Florida Act.
1.4 Organizational
Documents, Directors and Officers of the Surviving Corporation. From and
after the Effective Time, (a) the Articles of Incorporation of the
COMPANY (the “Company
Articles of Incorporation”), unless and until altered, amended or
repealed as provided in the Florida Act, shall be the Articles of Incorporation
of the Surviving Corporation, except that the name of the Surviving Corporation
shall be changed to “Federated National Insurance Company” as provided in
Section 1.3 above; (b) the bylaws of the COMPANY (the “Company Bylaws”), unless
and until altered, amended or repealed as provided in the Florida Act and the
Company Articles of Incorporation, shall be the bylaws of the Surviving
Corporation, (c) the directors of the COMPANY shall be the directors of the
Surviving Corporation, unless and until removed, or until their respective terms
of office shall have expired, in accordance with the Florida Act, the Company
Articles of Incorporation and the Company Bylaws, and (d) the officers of the
COMPANY shall be the officers of the Surviving Corporation, unless and until
removed, or until their terms of office shall have expired, in accordance with
the Florida Act and the Company Bylaws.
1.5 Taking of
Necessary Action. Prior to the Effective Time, the parties hereto shall
exercise reasonable best efforts to do or cause to be done all such acts and
things as may be necessary or appropriate in order to effectuate the Merger as
expeditiously as reasonably practicable, in accordance with this agreement and
the Florida Act.
1.6 Tax- Free
Reorganization. For Federal income tax purposes, the parties intend that
the Merger be treated as a tax-free reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the “Code”). The parties
to this agreement hereby adopt this Agreement as a “plan of reorganization”
within the meaning of Sections 1.368 2(g) and 1.368 3(a) of the United States
Treasury Regulations. The parties shall not take a position on any tax return
inconsistent with this Section 1.6, unless otherwise required by a taxing
authority.
1.7 Closing.
The closing of the Merger (the “Closing”) will take
place as soon as reasonably practicable after the satisfaction of all conditions
set forth in Article 3. The Closing shall take place at the offices of PARENT,
unless another place is agreed to by the parties.
ARTICLE
2
EFFECT
OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF
CERTIFICATES
2.1 Total
Consideration; Effect on Capital Stock. The entire consideration
payable by COMPANY with respect to all outstanding shares of capital stock of
TARGET shall be the sum of $1.00 plus other good and valuable
consideration. The 1,500,000 shares of common stock issued by TARGET
to PARENT will be cancelled. At the Effective Time, subject and
pursuant to the terms and conditions of this Agreement, by virtue of the Merger
and without any further action on the part of TARGET, COMPANY and PARENT, the
following actions and events shall occur:
(a) Capital
Stock of the TARGET and COMPANY. Each share of common stock of COMPANY
held by PARENT shall remain issued and outstanding following the
Merger.
(b) Cancellation
of Certain Shares of TARGET Stock. Each share of TARGET Common Stock that
is (i) owned by TARGET as treasury stock, (ii) authorized but unissued, or (iii)
owned by PARENT shall be cancelled and no PARENT Common Stock or other
consideration shall be delivered in exchange therefor.
2.2 Procedure
for Exchange Following the Effective time, the
certificate(s) representing the shares TARGET Common Stock owned by PARENT (the
“TARGET
Certificate”)shall be cancelled.
2.3 No
Further Ownership Rights in TARGET Common Stock. All COMPANY Common Stock
issued upon surrender for exchange of shares of TARGET Common Stock in
accordance with the terms of Article 2 shall be deemed to have been issued in
full satisfaction of all rights pertaining to such TARGET Common
Stock
2.4 Lost,
Stolen or Destroyed TARGET Certificates. In the event TARGET Certificate
shall have been lost, stolen or destroyed, upon making of an affidavit to that
effect by PARENT, COMPANY will issue in exchange for such lost, stolen, or
destroyed TARGET Certificate the Company Common Stock deliverable in respect
thereof pursuant to this Agreement.
ARTICLE
3
CLOSING
CONDITIONS; CLOSING DELIVERABLES AND CONDITIONS
3.1 Conditions
to Closing. The
respective obligations of each party to perform this Agreement and consummate
the merger and the other transactions contemplated hereby shall be subject to
the satisfaction of the following conditions, unless waived by both parties
pursuant to Section 5.8 of this Agreement:
(a) Authorization
of the Merger. All action necessary to authorized the execution, delivery
and performance of this Agreement, the Articles of Merger (as defined below) and
the consummation of the Merger and the other transactions contemplated hereby
shall have been duly validly taken, and not withdrawn, by the boards of
directors and shareholders of each TARGET, COMPANY, and PARENT.
(b) Approvals. All authorizations,
consents, orders or approvals of, or declarations or filing with or expiration
of waiting periods imposed by any governmental authority, including any required
by the OIR, necessary for the consummation of the transactions contemplated
hereby shall have been obtained or made or shall have occurred.
(c) No Legal
Action. No
temporary restraining order, preliminary injunction or permanent injunction or
other order preventing the consummation of the Merger shall have been issued by
any Federal or state court other governmental authority and remain in
effect.
(d) Articles
of Merger. Articles of Merger, satisfying all of the requirements of the
Florida Act, attaching this Agreement and in form and substance reasonably
satisfactory to all parties hereto (the “Articles of Merger”), shall have been
executed and delivered by both TARGET and COMPANY and, upon receipt of approval
by the OIR and satisfaction of all other conditions to consummation of the
Merger, shall be filed with and accepted for filing by the Secretary of State of
the State of Florida.
ARTICLE
4
MISCELLANEOUS
4.1 Entire
Agreement. This Agreement and the other writing referred to herein
contain the entire agreement among the parties hereto with respect to the
transactions contemplated hereby and supersede all prior agreements or
understandings, written or oral, among the parties with respect
thereto.
4.2 Notices. All notices or other
communications which are required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by nationally-recognized
overnight courier or by registered or certified mail, postage prepaid, return
receipt requested or by facsimile, with confirmation. All such notices or
communications shall be deemed to be received (a) in the case of personal
delivery, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day after the date when sent, (c) in the
case of facsimile transmission, upon confirmed receipt, and (d) in the case of
mailing, on the date set forth on the recipients execution of the return
receipt.
4.3 Counterparts. This Agreement may be
executed in any number of counterparts by original or facsimile signature, each
such counterpart shall be an original instrument, and all such counterparts
together shall constitute one and the same agreement.
4.4 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida.
4.5 Benefits
of Agreement. All
the terms and provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permits
assigns. This Agreement shall not be assignable by any party hereto without the
consent of the other parties hereto.
4.6 Amendment,
Modification and Waiver.
This Agreement shall not be altered of otherwise amended except pursuant
to an instrument in writing executed by the TARGET, COMPANY, and PARENT;
provided, however, that any party to this Agreement may waive in writing any
obligation owed to it by any other party under this Agreement. The waiver by any
party hereto of a breach of any provisions of this Agreement shall not operate
or be construed as a waiver of any subsequent breach.
4.7 No Third
Party Beneficiaries.
Nothing express or implied in this Agreement is intended to confer, no
shall anything herein confer, upon any person other than the parties and the
respective successors or assigns of the parties, any rights, remedies,
obligations or liabilities whatsoever.
[Remainder
of page intentionally left blank. Signatures on following page]
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement and Plan of Merger to be executed
on its behalf as of the date set forth above.
FEDERATED
NATIONAL INSURANCE COMPANY,
a Florida
Corporation
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By:
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/s/ Xxxxxxx X.
Xxxxx
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Name:
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Xxxxxxx X. Xxxxx
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Name:
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Xxxxxx X. Xxxxxx
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Title:
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President
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Title:
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Secretary
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AMERICAN
VEHICLE INSURANCE COMPANY,
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a
Florida Corporation
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By:
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/s/ Xxxxxxx X.
Xxxxx
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By:
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/s/ Xxxxxx X.
Guess
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Name:
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Xxxxxxx X. Xxxxx
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Name:
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Xxxxxx X. Guess
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Title:
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President
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Title:
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Secretary
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21ST
CENTURY HOLDING COMPANY,
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a
Florida Corporation
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By:
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/s/ Xxxxxxx X.
Xxxxx
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By:
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/s/ Xxxxx X. Prygelski,
III
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Name:
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Xxxxxxx X. Xxxxx
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Name:
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Xxxxx X. Prygelski, III
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Title:
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Chief Executive Officer &
President
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Title:
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Chief Financial Officer &
Treasurer
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