Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Merger Agreement"), dated
as of January 12, 2004, between Fortis, Inc., a Nevada corporation ("Parent"),
and Assurant, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Subsidiary").
BACKGROUND
WHEREAS, Parent is a Nevada corporation named Fortis, Inc. having its
address at Xxx Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
WHEREAS, Subsidiary is a Delaware corporation named Assurant, Inc.
having its address at Xxx Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
WHEREAS, Subsidiary will be the Surviving Corporation (as defined
below). The Surviving Corporation will be a Delaware corporation with the name
Assurant, Inc., having its address at Xxx Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000;
WHEREAS, Parent and Subsidiary have entered into this Merger Agreement
for the purpose of moving the Parent's jurisdiction from Nevada to Delaware,
which requires the merger of Parent with and into Subsidiary (the "Merger");
WHEREAS, each of the respective Boards of Directors of Parent and
Subsidiary have approved the Merger upon the terms and subject to the conditions
set forth in this Merger Agreement; and
WHEREAS, Parent and Subsidiary desire to set forth the terms of, and
also to prescribe various conditions to, the consummation of the Merger;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
THE MERGER
1.1 The Merger. At the Effective Time (as defined in
Section 1.2 hereof), in accordance with this Merger Agreement, the General
Corporation Law of the State of Delaware, as amended (the "DGCL"), and Chapter
92A of the Nevada Revised Statutes, as amended (the "NRS"), Parent shall be
merged with and into Subsidiary in the Merger, the separate existence of Parent
shall cease and Subsidiary shall continue as the surviving corporation (the
"Surviving Corporation"). From and after the Effective Time, the Surviving
Corporation shall possess all
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the rights, privileges, powers and franchises, of a public as well as a private
nature, and shall be subject to all debts, liabilities and duties, of Parent and
Subsidiary all with the effect set forth in the DGCL and the NRS.
1.2 Closing.
(a) Unless the Merger Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to the provisions of Article III hereof, the closing (the "Closing") of
the Merger shall take place at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place and on a
date and at a time mutually agreeable to the parties hereto. The date and time
of such Closing are herein referred to as the "Closing Date."
(b) Concurrently with the Closing, the parties hereto
will cause the Merger to be consummated by (i) executing and delivering to the
Secretary of State of the State of Delaware a certificate of merger in
compliance with the DGCL (the "Delaware Certificate of Merger") and (ii)
executing and delivering to the Secretary of State of the State of Nevada
articles of merger in compliance with Nevada law (the "Nevada Articles of
Merger"), and will make all other filings or recordings as may be required under
the DGCL and the NRS in connection with the Merger. The Merger shall become
effective (the "Effective Time") upon the filing of the Delaware Certificate of
Merger and the Nevada Articles of Merger or upon such later time as specified in
both the Delaware Certificate of Merger and the Nevada Articles of Merger.
1.3 Certificates of Incorporation; Bylaws; Directors and
Officers; Name. The Certificate of Incorporation of Subsidiary will be amended
and restated prior to the Effective Time in substantially the form attached
hereto as Exhibit A (the "Restated Certificate of Incorporation") and as such
shall be the Certificate of Incorporation of the Surviving Corporation, until
thereafter amended as provided therein and under the DGCL. The By-Laws of
Subsidiary will be amended and restated prior to the Effective Time in
substantially the form attached hereto as Exhibit B and as such shall be the
Bylaws of the Surviving Corporation, until thereafter amended as provided
therein and under the DGCL. The directors of Subsidiary immediately prior to the
Effective Time shall be the directors of the Surviving Corporation, and the
officers of Parent immediately prior to the Effective Time shall be initial
officers of the Surviving Corporation, in each case until their successors are
duly elected and qualified. The name of the Surviving Corporation shall be
"Assurant, Inc."
ARTICLE II.
STATUS AND CONVERSION OF SHARE AND PAYMENT THEREFOR
2.1 Conversion of Shares. At the Effective Time:
(a) Each share of Class A Common Stock, par value $0.10
per share, of Parent issued and outstanding immediately prior to the Effective
Time ("Parent Class A
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Common Stock") shall by virtue of the Merger and without any action on the part
of the holder thereof be converted into 10.75882039 validly issued, fully paid
shares of Common Stock, par value $0.01 per share, of the Surviving Corporation.
(b) Each share of Class B Common Stock, par value $0.10
per share, of Parent issued and outstanding immediately prior to the Effective
Time shall by virtue of the Merger and without any action on the part of the
holder thereof be converted into one validly issued, fully paid share of Class B
Common Stock, par value $0.01 per share, of the Surviving Corporation with such
terms and conditions as shall be set forth in the Restated Certificate of
Incorporation.
(c) Each share of Class C Common Stock, par value $0.10
per share, of Parent issued and outstanding immediately prior to the Effective
Time shall by virtue of the Merger and without any action on the part of the
holder thereof be converted into one validly issued, fully paid share of Class C
Common Stock, par value $0.01 per share, of the Surviving Corporation with such
terms and conditions as shall be set forth in the Restated Certificate of
Incorporation.
(d) Each share of Series B Preferred Stock, par value
$1.00 per share, of Parent issued and outstanding immediately prior to the
Effective Time shall by virtue of the Merger and without any action on the part
of the holder thereof be converted into one validly issued, fully paid share of
Series B Preferred Stock, par value $1.00 per share, of the Surviving
Corporation with such terms and conditions as shall be set forth in the Restated
Certificate of Incorporation.
(e) Each share of Series C Preferred Stock, par value
$1.00 per share, of Parent issued and outstanding immediately prior to the
Effective Time shall by virtue of the Merger and without any action on the part
of the holder thereof be converted into one validly issued, fully paid share of
Series C Preferred Stock, par value $1.00 per share, of the Surviving
Corporation with such terms and conditions as shall be set forth in the Restated
Certificate of Incorporation.
(f) All of the shares of common stock of Subsidiary
issued and outstanding immediately prior to the Effective Time shall by virtue
of the Merger and without any action on the part of the holder thereof be
canceled.
2.2 Additional Rights; Taking of Necessary Action;
Further Action. Parent and Subsidiary shall each use its best efforts to take
all such action as may be necessary or appropriate in order to effectuate the
Merger under the DGCL and the NRS as promptly as possible. If at any time after
the Effective Time, any further action is necessary or desirable to carry out
the purposes of this Merger Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of either of Parent or Subsidiary, the officers 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.
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ARTICLE III.
TERMINATION, AMENDMENT AND WAIVER
3.1 Termination. Subject to applicable law, this Merger
Agreement may be terminated at any time prior to the Effective Time,
notwithstanding approval of this Merger Agreement by the stockholders of any of
the parties hereto, by the boards of directors of each of the parties hereto.
3.2 Amendment. Subject to applicable law, this Merger
Agreement may be amended at any time prior to the Effective Time by the boards
of directors of the parties hereto; provided that after the adoption of this
Merger Agreement by the stockholders of any constituent corporation no amendment
shall be made which by law requires the further approval of such stockholders
without such further approval; and provided further that no amendment shall be
made except by an instrument or instruments in writing signed and delivered on
behalf of each of the parties hereto.
3.3 Extension; Waiver. At any time prior to the Closing
Date, any party hereto which is entitled to the benefits hereof may (a) extend
the time for the performance of any of the obligations or other acts of any of
the other parties hereto or (b) waive compliance with any of the agreements of
any of the other parties hereto. Any agreement on the part of a party hereto to
any extension or waiver shall be valid if set forth in an instrument in writing
signed and delivered on behalf of such party.
ARTICLE IV.
OTHER PROVISIONS
4.1 Successors and Assigns. This Merger Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
4.2 No Benefit to Others. The covenants and agreements
contained in this Merger Agreement are for the sole benefit of the parties
hereto and their respective successors and permitted assigns and they shall not
be construed as conferring and are not intended to confer any rights on any
other persons.
4.3 Severability. The provisions of this Merger Agreement
shall be deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Merger Agreement, or the application
thereof to any person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision, and (b) the remainder of this Merger
Agreement and the application of such provision to other persons or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such
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invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof in any other jurisdiction.
4.4 Governing Law. This Merger Agreement will be governed
by and construed in accordance with the law of the State of Delaware.
4.5 Counterparts. This Merger Agreement may be executed
in two or more counterparts, all of which will be considered one and the same
agreement and will become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
4.6 Interpretation. Article titles and headings to
sections are inserted for convenience of reference only and are not intended to
be a part or to affect the meaning or interpretation hereof. As used herein,
"include" is deemed to be followed by "without limitation" whether or not it is
in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of
reproducing words in a visible form; references to a person are also to its
successors and permitted assigns; "hereof", "herein", "hereunder" and comparable
terms refer to the entirety hereof and not to any particular article, section or
other subdivision hereof; references to any gender include references to other
genders and references to the singular include references to the plural and vice
versa; references to this Merger Agreement or other documents are as amended or
supplemented from time to time; references to "Article", "Section" or another
subdivision are to an article, section or subdivision hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Merger
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
FORTIS, INC.,
a Nevada corporation
By: /s/ J. Xxxxx Xxxxxxx
________________________________
Name: J. Xxxxx Xxxxxxx
Title: President and CEO
ASSURANT, INC.,
a Delaware corporation
By: /s/ J. Xxxxx Xxxxxxx
________________________________
Name: J. Xxxxx Xxxxxxx
Title: President and CEO
