AGREEMENT AND PLAN OF MERGER
Munich American Reinsurance Company
and
American Re-Insurance Company
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of the 1st day of July, 1997,
(the "Agreement"), is by and among American Re-Insurance Company, a Delaware
corporation (the "Company"), American Re Corporation, a Delaware corporation
("Parent"), and Munich American Reinsurance Company, a New York corporation
("MARC") and each shareholder of MARC listed on the signature pages hereof (the
"Seller(s)"). Each of MARC and the Company is sometimes referred to herein as a
"Constituent Corporation," and the Company is sometimes referred to herein as
the "Surviving Corporation."
WHEREAS, the Company was originally incorporated under the laws of
Pennsylvania on March 15, 1917 was formerly known as A.R. Insurance, Inc., and
was reincorporated under the laws of New York on July 25, 1933, and was
redomesticated under the laws of Delaware on January 1, 1978, and pursuant to
its Certificate of Incorporation, has an authorized capital stock of 6,000,000
shares, par value $1.50 per share, one vote per share of which 5,470,713 shares
are issued and outstanding; and
WHEREAS, MARC was incorporated under the laws of New York on September 10,
1975, and pursuant to its Charter, has authorized capital stock of 7,000 common
shares, par value $1,000.00 per share, one vote per share, and 71,000 preferred
shares, par value $1,000.00 per share, nonvoting except as provided by law, all
of which shares of capital stock are issued and outstanding (the "MARC Stock");
and
WHEREAS, Section 7102(a)(2) of the New York Insurance Law authorizes the
merger of an insurance corporation organized under the laws of New York into an
insurance corporation organized under the laws of another state and Section 4930
of the Delaware Insurance Code authorizes the merger of stock insurers organized
under the laws of another state into a stock insurer organized under the laws of
the State of Delaware; and
WHEREAS, the Boards of Directors of each Constituent Corporation have each
determined that it is in the best interests of such Constituent Corporation, and
their respective shareholders and stockholders, that MARC merge with and into
the Company pursuant to this Agreement and pursuant to Article 71 of the New
York Insurance Laws, Chapter 49 of the Delaware Insurance Code, other applicable
laws of the states of New York and Delaware, and the requirements of the New
York State Insurance Department and the Delaware Insurance Department; and
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WHEREAS, the parties hereto intend that the merger contemplated by this
Agreement qualify as a tax-free reorganization pursuant to Section 368 of the
Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
representations, warranties and agreements herein contained, and for the purpose
of stating the terms and conditions of the merger, the mode of carrying the same
into effect, the treatment of the MARC Stock, and such other details and
provisions as are deemed desirable, the parties hereto have agreed, and do
hereby agree, subject to the terms and conditions hereinafter set forth, as
follows:
I. THE MERGER
1.1 The Merger; Effective Date. On the Effective Date (defined below) of
the merger and in accordance with the provisions of the laws of Delaware and New
York and subject to the terms and conditions hereof, MARC shall be merged with
and into the Company, and the Company, as the Surviving Corporation, shall
continue to exist and be governed by the General Corporation Law of the State of
Delaware and the Delaware Insurance Code and the name of the Surviving
Corporation shall be American Re-Insurance Company.
As soon as practicable following fulfillment of the terms and conditions
provided herein, and provided that this Agreement has not been terminated or
abandoned pursuant to Article VIII hereof, the Company and/or MARC, as the case
may be, will cause all of the following conditions to be satisfied: (i) the
Company will file a power of attorney with the Superintendent of the New York
Insurance Department in compliance with Section 1212 of the New York Insurance
Law; (ii) the Company and MARC will file a duplicate or certified copy of this
Agreement, duly approved by the Commissioner of Insurance of the State of
Delaware, with the Superintendent of the New York Insurance Department in
compliance with Section 7106 of the New York Insurance Law; (iii) the Company
and MARC will cause the Certificate of Merger in substantially the form of
Exhibit 1 hereto (the "Certificate of Merger") to be executed, verified and
delivered for filing with the office of the Secretary of State of the State of
Delaware as provided in Section 252 of the General Corporation Law of Delaware;
(iv) the Company will cause a signed or conformed copy of the Certificate of
Merger, to be recorded in the Office of the Recorder of New Castle County, State
of Delaware, in accordance with the provisions of Section 103 of the General
Corporation Law of Delaware; and (v) the Company will cause a signed or
conformed copy of the Agreement approved by the Superintendent of the New York
Insurance Department and the
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Commissioner of Insurance of the State of Delaware, to be filed with the office
of the Clerk of New York County, State of New York, which is the county where
the principal office of MARC is located and in the office of the recording
officer of each county in which MARC's real property is situated, in accordance
with Section 907(h) of the New York Business Corporation Law.
Assuming all necessary corporate and regulatory approvals have been
obtained, and all necessary filings shall have been made, the merger shall
become effective as of 12:01 a.m, July 1, 1997 (hereinafter the "Effective
Date").
1.2 Effects of the Merger. On the Effective Date, the separate existence
of MARC shall cease. The Surviving Corporation shall possess all the rights,
privileges, immunities, powers and franchises of a public as well as of a
private nature, and be subject to all the restrictions, disabilities and duties
of each of the Constituent Corporations; and all and singular, the rights,
privileges, interests, powers and franchises of each of such Constituent
Corporations, and all property, real, personal and mixed, and all debts due to
either of such Constituent Corporations on whatever account as well as all other
things in action or belonging to each of such Constituent Corporations shall be
vested in such Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter as
effectually the property of such Surviving Corporation as they were of such
Constituent Corporations, and the title to any real estate vested by deed or
otherwise, under the laws of the State of Delaware, New York or any other
jurisdiction, in either of such Constituent Corporations, shall not revert or be
in any way impaired by reason of such laws; but all rights of creditors and all
liens upon any property of either of such Constituent Corporations shall be
preserved unimpaired, and all debts, liabilities, obligations, commitments and
duties of such Constituent Corporations shall thenceforth attach to such
Surviving Corporation, and may be enforced against it to the same extent as if
said debts, liabilities, obligations, commitments and duties had been incurred
or contracted by it. No action or proceeding, civil or criminal, then pending
by or against either Constituent Corporation or any policyholder, shareholder,
officer or director thereof, shall be abated or discontinued by the merger but
may be enforced, prosecuted, settled or compromised as if the merger had not
occurred, or the Surviving Corporation may be substituted in place of MARC by
order of the court in which the action or proceeding may b pending.
1.3 Certificate. The Certificate of Incorporation of the Company as in
effect immediately prior to the Effective Date and as set forth as Exhibit 2
shall be the Certificate of Incorporation of the Surviving Corporation and may
be amended from time to time after the Effective Date as provided by law.
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1.4 By-Laws. The By-Laws of the Company as in effect immediately prior to
the Effective Date shall continue unchanged as the By-Laws of the Surviving
Corporation until the same shall thereafter be altered, amended or repealed in
accordance with law, the Certificate of Incorporation of the Surviving
Corporation or said By-Laws.
1.5 Directors and Officers. (a) From and after the Effective Date, the
members of the Board of Directors of the Surviving Corporation shall consist of
Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Beer, Xxxxxx X. Xxxxxxx, Xxxxxx
X. Xxxx, Xxxxxxx X. XxXxxxxxx and Xxxx X. Xxxxxxxx, each of such persons to
serve in accordance with the By-Laws of the Surviving Corporation until his
successor is elected and qualified or until his earlier death, resignation or
removal. If on or after the Effective Date a vacancy shall exist in the Board
of Directors of the Surviving Corporation, such vacancy may thereafter be filled
in the manner provided by law and by the By-Laws of the Surviving Corporation.
(b) From and after the Effective Date, the elected officers of the Company
shall be the elected officers of the Surviving Corporation to serve in office at
the pleasure of the Board of Directors of the Surviving Corporation, until their
successors are elected and qualified or until their earlier death, resignation
or removal.
1.6 Approval by Stockholders. This Agreement has been approved by Parent,
as the sole stockholder of the Company and by the Seller(s), as each and every
stockholder of MARC, as provided by the applicable laws of the states of
Delaware and New York, respectively (collectively the "Stockholders").
II. MODE OF CARRYING THE MERGER INTO EFFECT
2.1 Terms of the Merger. On the Effective Date, by virtue of the merger
and without any action on the part of the Company, Xxxxxx, XXXX, the Seller(s)
or any holder of any of the shares, each share of MARC Stock issued and
outstanding immediately prior to the Effective Date shall by virtue of the
merger be canceled and extinguished. Each share of issued and outstanding
capital stock of the Surviving Corporation, consisting of 5,470,713 shares of
capital stock (par value $1.50 per share; one vote per share), on the Effective
Date shall continue to evidence the same number of shares of the capital stock
of the Surviving Corporation. As a result, the Parent will continue to hold the
same number of issued and outstanding shares of capital stock of the Surviving
Corporation (5,470,713 shares) upon effectiveness of the merger as it did in the
Surviving Corporation prior to the merger. Concurrent with the merger and the
effectiveness of this Agreement, the Parent shall issue to Seller(s) an
additional 25.92804 shares of common stock of Parent ("Parent Shares") with such
rights as are set forth in Parent's amended Certificate of Incorporation with
the
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allocation of Parent Shares to each Seller made as specified on Exhibit 3 to
this Agreement.
2.2 Taking of Necessary Action; Further Action. Xxxxxx, XXXX, Seller(s)
and the Company, respectively, shall take all such lawful action as may be
necessary or appropriate in order to effectuate the merger as promptly as
possible. If at any time after the Effective Date any further action is
necessary or desirable to carry out the purposes of this Agreement, and to vest
the Surviving Corporation with full right, title and possession of all assets,
property, rights, privileges, powers, and franchises of either of the
Constituent Corporations, the officers and directors of such corporation are
fully authorized in the name of their corporation or otherwise to take, and
shall take, all such lawful and necessary action.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to, and agrees with, Seller(s)
and MARC as follows:
3.1 Organization and Qualification, Etc. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has full power and authority (corporate and other) to own
its properties and to carry on its business as it is now being conducted.
Copies of the Company's Certificate of Incorporation, as amended, and By-Laws,
as amended, have been delivered to Seller(s) and are complete and correct and,
as so amended, in full force and effect. The Company is duly authorized to
transact insurance and reinsurance under the laws of the States of New York and
Delaware. Copies of the Company's Certificates of Authority in the States of
New York and Delaware have been delivered to Seller(s) and are in full force and
effect.
3.2 Authority. The Company is in compliance with all requirements
relating to foreign corporations doing business in New York. The Company has
full power and authority to execute and deliver this Agreement and to perform
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and is valid and binding upon the Company in accordance
with its terms.
3.3 Capitalization. The authorized capital stock of the Company consists
of 6,000,000 shares of capital stock. As of March 31, 1997, there were issued
and outstanding 5,470,713 shares of capital stock, all of which shares were
validly issued and fully paid and are nonassessable. Since March 31, 1997 there
have been no changes in the authorized, issued or outstanding shares of the
Company. There are no shares reserved for issuance and the Company has no
commitment to issue or sell any shares or any securities or obligations
convertible into or exchangeable for, or giving any person any right to
subscribe for or
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acquire from the Company, any shares and no securities or obligations
representing such rights are outstanding.
3.4 Stockholder Consent. The stockholder vote required by law to approve
and adopt this Agreement on behalf of the Company is a majority of the issued
and outstanding stock of the Company's one class of capital stock entitled to
vote thereon.
IV. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to, and agrees with, the Seller(s) and MARC
as follows:
4.1 Organization and Qualification, Etc. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full power and authority (corporate and other) to own its
properties and to carry on its business as it is now being conducted.
4.2 Authority. Parent has full power and authority to execute and deliver
this Agreement and to perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Parent and is
valid and binding upon Parent in accordance with its terms.
V. REPRESENTATIONS AND WARRANTIES OF MARC
MARC hereby represents and warrants to, and agrees with, Parent and Company
as follows:
5.1 Organization and Qualification, Etc. MARC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. Copies of MARC's Charter and By-Laws have been delivered to the
Company and are complete and correct and in full force and effect. MARC is duly
authorized to transact insurance and reinsurance under the laws of the States of
New York and Delaware. Copies of MARC's Certificates of Authority in the States
of New York and Delaware have been delivered to the Company and are in full
force and effect.
5.2 Authority. MARC has full power and authority to execute and deliver
this Agreement, to perform the transactions contemplated hereby and to
consummate the merger. This Agreement has been duly authorized, executed and
delivered by MARC and is valid and binding upon MARC in accordance with its
terms.
5.3 Capitalization. The authorized capital stock of MARC consists of
71,000 shares of preferred stock and 7,000 shares of common stock. As of March
31, 1997, there
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were issued and outstanding 71,000 shares of preferred stock and 7,000 shares of
common stock, all of which shares were validly issued and fully paid and are
nonassessable. Since March 31, 1997, there have been no changes in the
authorized, issued or outstanding shares of MARC. There are no shares reserved
for issuance and MARC has no commitment to issue or sell any shares or any
securities or obligations convertible into or exchangeable for, or giving any
person any right to subscribe for or acquire from MARC, any shares and no
securities or obligations representing such rights are outstanding.
5.4 Shareholder Consent. The shareholder vote required by law to approve
and adopt this Agreement on behalf of MARC is two-thirds of the issued and
outstanding shares of MARC's one class of common shares entitled to vote
thereon.
VI. REPRESENTATIONS AND WARRANTIES OF SELLER(S)
Each Seller represents and warrants to, and agrees with, the Parent and
Company as follows:
6.1 Organization and Qualification, Etc. Each Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of Germany, and has full power and authority (corporate and other) to
own its properties and to carry on its business as it is now being conducted.
6.2 Authority. Each Seller has full power and authority to execute and
deliver this Agreement and to perform the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by each Seller
and is valid and binding upon such Seller in accordance with its terms.
VII. MUTUAL COVENANTS AND AGREEMENTS
7.1 Reasonable Efforts. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
promptly take, or cause to be taken, all action and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and regulations,
or otherwise, including, without limitation, attempting to obtain all necessary
consents and approvals of, permits from, and assurances of no objection to the
merger at other rulings from the appropriate governmental authorities to
consummate and make effective, as soon as practicable, the transactions
contemplated by this Agreement. In case at any time after the Effective Date any
further action is necessary, proper or advisable to carry out the purposes of
this Agreement, as soon as reasonably
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practicable, each party to this Agreement shall cause its proper officers and
directors to take all such necessary action to effectuate such purpose.
7.2 Access. From the date hereof to the Effective Date, each party shall
provide the other parties with such information and permit the other parties'
officers and representatives such access to its properties and books and records
as the other parties may from time to time reasonably request.
7.3 Notification of Certain Matters. Each party shall give prompt notice
to the other parties, of (i) the occurrence, or failure to occur, of any event
which occurrence or failure would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect at any time from the date hereof to the Effective Date and (ii) any
material failure by such party, or any officer, director, employee or agent
thereof, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder.
VIII. TERMINATION OR ABANDONMENT
8.1 Termination or Abandonment. Notwithstanding the approval of the
Stockholders, this Agreement and the merger may be terminated and abandoned at
any time prior to the Effective Date, or as may otherwise be permitted by
applicable law, by the Board of Directors of either of the Constituent
Corporations.
8.2 Effect of Termination. In the event of the termination and
abandonment of this Agreement and the merger pursuant to the foregoing
provisions of this Article VIII, this Agreement shall become void and have no
effect, with no liability on the part of the party electing to cause such
termination or abandonment or its Stockholders or directors or officers in
respect thereof.
IX. MISCELLANEOUS
9.1 Waiver. At any time prior to the Effective Date, any party may (i)
agree to extend the time for performance of any of the obligations or other acts
of the other parties hereto, (ii) waive any inaccuracies in the representations
and warranties of the other parties contained herein or in any document
delivered pursuant hereto, and (iii) waive any conditions or compliance by the
other parties with any of the agreements contained herein. Any agreement on the
part of a party hereto to any such waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
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9.2 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if sent by registered or certified mail,
postage prepaid, addressed,
If to Company: American Re-Insurance Company
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Executive Vice
President, General Counsel and Secretary
If to Parent: American Re Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Executive Vice
President, General Counsel and Secretary
If to MARC: Munich American Reinsurance Company
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Xx., Senior Vice
President, General Counsel and Secretary
If to Seller(s): Names and Addresses as noted on Exhibit 3
or such other address as shall be furnished in writing by any party to the other
prior to the giving of applicable notice or communication, and such notice or
communication shall be deemed to have been given as of the date so mailed. Any
such notice or communication to or by Parent shall be deemed to be a notice or
communication to or by the Company, and any such notice or communication to or
by any Seller shall be deemed to be a notice or communication by MARC, unless
otherwise specifically stated therein.
9.3 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.4 Headings. The headings or articles and sections herein are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
9.5 Variation and Amendment. This Agreement (including the documents and
instruments referred to herein or therein) (a) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof, (b) is not
intended to confer upon any other person any rights or remedies hereunder and
(c) shall not be assigned by operation of law or otherwise, except with the
written consent of the other party hereto. This Agreement may be varied or
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amended only by written action of the Company, Parent, Seller(s) and MARC at any
time prior to the Effective Date, provided no such variance or amendment after
the Stockholders vote upon the merger shall reduce the consideration to which
each Seller is to become entitled as of the Effective Date pursuant to Section
2.1.
9.6 No Survival of Representations and Warranties. None of the
representations and warranties included or provided for in this Agreement shall
survive the Effective Date.
9.7 Expenses. Whether or not the merger is consummated, all costs and
expenses incurred in connection with this agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
9.8 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to principles
of conflict of laws.
9.9 No Additional Compensation. No director, officer, agent or employee
of Parent, Seller(s), MARC or the Company shall receive any fee, commission,
compensation or other valuable consideration whatsoever for aiding, promoting or
assisting in the merger or in the adoption or approval of this Agreement, other
than normal and routine fees, commissions, compensations, bonuses and employee
benefits currently being paid to such directors, officers, agents and employees
in their usual capacity as such.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, pursuant to authority duly given by their respective
Board of Directors and consistent with the approvals of the merger by the
Stockholders, this Agreement and Plan of Merger has been signed on behalf of
Xxxxxx, XXXX, the Seller(s) and the Company by a duly authorized officer of each
corporation, all as of the date first above written.
AMERICAN RE-INSURANCE COMPANY
Attest:_____________________________ By:__________________________________
Secretary Name: Xxxxxx X. Xxxxxx
Title: Chairman, President and Chief
Executive Officer
(Seal)
AMERICAN RE CORPORATION
Attest:_____________________________ By:__________________________________
Secretary Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
(Seal)
MUNICH AMERICAN REINSURANCE
COMPANY
Attest:_____________________________ By:__________________________________
Secretary Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
(Seal)
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MUNCHENER RUCKVERSICHERUNGS-
GESELLSCHAFT AKTIENGESELLSCHAFT
IN MUNCHEN
Attest:_____________________________ By:__________________________________
Secretary Name:
Title: President
(Seal)
MUNICH MANAGEMENT CORPORATION,
U.S. MANAGER OF MUNICH REINSURANCE
COMPANY, UNITED STATES BRANCH
Attest:_____________________________ By:__________________________________
Secretary Name:
Title: President
(Seal)
ALLIANZ AKTIENGESELLSCHAFT
Attest:_____________________________ By:__________________________________
Secretary Name:
Title: President
(Seal)
VICTORIA VERSICHERUNG AG
Attest:_____________________________ By:__________________________________
Secretary Name:
Title: President
(Seal)
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