Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF
UTG, INC.
(A Delaware Corporation)
AND
UNITED TRUST GROUP, INC.
(An Illinois Corporation)
THIS AGREEMENT AND PLAN OF MERGER, dated as of April 4, 2005 (the
"Agreement"), is made by and between UTG, Inc., a Delaware corporation ("United
Delaware"), and United Trust Group, Inc., an Illinois corporation ("United
Illinois"). United Delaware and United Illinois are sometimes referred to herein
as the "Constituent Corporations."
RECITALS
A. United Illinois is a corporation duly organized and existing under the
laws of the State of Illinois. On the date hereof, the total number of shares of
Common Stock of United Illinois (the "United Illinois Common Stock"), authorized
to be issued is 7,000,000 and the total number of shares of Preferred Stock of
United Illinois (the "United Illinois Preferred Stock") authorized to be issued
is 150,000.
B. United Delaware is a corporation duly organized and existing under the
laws of the State of Delaware. On the date hereof, the total number of shares of
Common Stock, $.001 par value per share (the "United Delaware Common Stock")
authorized to be issued is 7,000,000, and the total number of shares of
Preferred Stock, $.001 par value per share (the "United Delaware Preferred
Stock") authorized to be issued is 150,000. The United Delaware Preferred Stock
is undesignated as to series, rights, preferences, privileges, or restrictions.
As of the date hereof, 100 shares of United Delaware Common Stock were issued
and outstanding, all of which were held by United Illinois, and no shares of
United Delaware Preferred Stock were issued and outstanding.
C. United Delaware is a wholly owned subsidiary of United Illinois.
D. The Board of Directors of United Illinois has determined that, for the
purpose of effecting the reincorporation of United Illinois in the State of
Delaware, it is advisable and in the best interests of United Illinois and its
shareholders that United Illinois merge with and into United Delaware upon the
terms and conditions provided herein.
E. The respective Boards of Directors of United Delaware and United
Illinois have approved and adopted this Agreement and have directed that this
Agreement be submitted to a vote of their sole stockholder and shareholders,
respectively, and executed by the undersigned officers.
F. The Merger (as hereinafter defined) is intended to qualify as a
reorganization described in Section 368(a) of the Internal Revenue Code of 1986,
as amended.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, United Delaware and United Illinois hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
ARTICLE I
MERGER
1.1 Merger.
In accordance with the provisions of this Agreement, the Delaware General
Corporation Law (the "DGCL") and the Illinois Business Corporation Act (the
"IBCA"), United Illinois shall be merged with and into United Delaware (the
"Merger"), the separate existence of United Illinois shall cease, and United
Delaware shall survive the Merger and shall continue to be governed by the laws
of the State of Delaware. United Delaware shall be, and is sometimes referred to
herein as, the "Surviving Corporation." The name of the Surviving Corporation
shall be UTG, Inc.
1.2 Filing and Effectiveness.
The Merger shall become effective when the following actions shall have
been completed:
(a) this Agreement and the Merger shall have been adopted and approved
by each Constituent Corporation in accordance with the requirements of the
DGCL and the IBCA;
(b) all of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) an executed Certificate of Ownership and Merger meeting the
requirements of the DGCL shall have been filed with the Secretary of State
of the State of Delaware (the "Delaware Certificate"); and
(d) executed articles of merger, as provided in the IBCA, shall have
been filed with the Secretary of State of the State of Illinois.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.3 Effect of the Merger.
Upon the Effective Date of the Merger, the separate existence of
United Illinois shall cease and United Delaware, as the Surviving
Corporation shall:
(i) continue to possess all of its assets, rights, powers and property as
constituted immediately prior to the Effective Date of the Merger;
(ii) be subject to all actions previously taken by its and United Illinois'
Boards of Directors;
(iii)succeed, without other transfer, to all of the assets, rights, powers
and property of United Illinois in the manner more fully set forth in
Section 259 of the DGCL;
(iv) continue to be subject to all of the debts, liabilities and
obligations of United Delaware as constituted immediately prior to the
Effective Date of the Merger; and
(v) succeed, without other transfer, to all of the debts, liabilities and
obligations of United Illinois in the same manner as if United
Delaware had itself incurred them, all as more fully provided under
the applicable provisions of the DGCL and the IBCA.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation.
The Certificate of Incorporation of United Delaware as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
2.2 By-Laws.
The By-Laws of United Delaware as in effect immediately prior to the
Effective Date of the Merger shall continue in full force and effect as the
By-Laws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
2.3 Directors and Officers.
The directors and officers of United Illinois immediately prior to the
Effective Date of the Merger shall be the directors and officers of the
Surviving Corporation until their successors shall have been duly elected and
qualified or until as otherwise provided by law, the Certificate of
Incorporation of the Surviving Corporation or the By-Laws of the Surviving
Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
3.1 United Illinois Common Stock.
Upon the Effective Date of the Merger, each share of United Illinois Common
Stock, issued and outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by either of the Constituent Corporations, the
holder of such shares or any other person, be converted into and exchanged for
one (1) fully paid and nonassessable share of Common Stock of the Surviving
Corporation.
3.2 United Illinois Employee Benefit Plans.
Upon the Effective Date of the Merger, the Surviving Corporation shall
assume and continue any and all stock option, stock incentive and other
equity-based award plans heretofore adopted by United Illinois (individually, an
"Equity Plan" and, collectively, the "Equity Plans"), and shall reserve for
issuance under each Equity Plan a number of shares of United Delaware Common
Stock equal to the number of shares of United Illinois Common Stock so reserved
immediately prior to the Effective Date of the Merger. Each unexercised option
or other right to purchase United Illinois Common Stock granted under and by
virtue of any such Equity Plan which is outstanding immediately prior to the
Effective Date of the Merger shall, upon the Effective Date of the Merger,
become an option or right to purchase United Delaware Common Stock on the basis
of one share of United Delaware Common Stock for each share of United Illinois
Common Stock issuable pursuant to any such option or stock purchase right, and
otherwise on the same terms and conditions and at an exercise or conversion
price per share equal to the exercise or conversion price per share applicable
to any such United Illinois option or stock purchase right. Each other
equity-based award relating to United Illinois Common Stock granted or awarded
under any of the Equity Plans which is outstanding immediately prior to the
Effective Date of the Merger shall, upon the Effective Date of the Merger,
become an award relating to United Delaware Common Stock on the basis of one
share of United Delaware Common Stock for each share of United Illinois Common
Stock to which such award relates and otherwise on the same terms and conditions
applicable to such award immediately prior to the Effective Date of the Merger.
3.3 United Delaware Common Stock.
Upon the Effective Date of the Merger, each share of United Delaware Common
Stock issued and outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by United Delaware, the holder of such shares or
any other person, be canceled and returned to the status of authorized but
unissued shares.
3.4 Exchange of Certificates.
(a) After the Effective Date of the Merger, each holder of an
outstanding certificate representing United Illinois Common Stock may, at
such holder's option, surrender the same for cancellation to our Stock
Transfer Department, as exchange agent (the "Exchange Agent"), and each
such holder shall be entitled to receive in exchange therefor a certificate
or certificates representing the number of shares of the Surviving
Corporation's Common Stock into which the surrendered shares were converted
as provided herein. Unless and until so surrendered, each outstanding
certificate theretofore representing shares of United Illinois Common Stock
shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock into which such shares of United
Illinois Common Stock were converted in the Merger.
(b) The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any shares of stock represented by
such outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or the Exchange Agent, have and be entitled to
exercise any voting and other rights with respect to, and to receive
dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by, such outstanding certificate as
provided above.
(c) Each certificate representing Common Stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any,
with respect to the restrictions on transferability as the certificates of
United Illinois so converted and given in exchange therefore, unless
otherwise determined by the Board of Directors of the Surviving Corporation
in compliance with applicable laws, or other such additional legends as
agreed upon by the holder and the Surviving Corporation.
(d) If any certificate for shares of the Surviving Corporation stock
is to be issued in a name other than that in which the certificate
surrendered in exchange therefor is registered, it shall be a condition of
issuance thereof: (i) that the certificate so surrendered shall be properly
endorsed and otherwise in proper form for transfer; (ii) that such transfer
otherwise be proper and comply with applicable securities laws; and (iii)
that the person requesting such transfer pay to the Surviving Corporation
or the Exchange Agent any transfer or other taxes payable by reason of
issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such tax has been paid or is
not payable.
ARTICLE IV
GENERAL
4.1 Covenants of United Delaware.
United Delaware covenants and agrees that it will, on or before the
Effective Date of the Merger:
(a) qualify to do business as a foreign corporation in the State of
Illinois and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of the IBCA;
(b) file any and all documents necessary for the assumption by United
Delaware of all of the tax liabilities of United Illinois;
(c) file the Delaware Certificate with the Secretary of State of the
State of Delaware;
(d) file articles of merger with the Secretary of State of the State
of Illinois; and
(e) take all such other actions as may be required by the DGCL and the
IBCA to effect the Merger.
4.2 Covenants of United Illinois.
United Illinois covenants and agrees that it will, on or before the
Effective Date of the Merger, take all such other actions as may be required by
the DGCL and the IBCA to effect the Merger.
4.3 Further Assurances.
From time to time, as and when required by the Surviving Corporation or by
its successors or assigns, there shall be executed and delivered on behalf of
United Illinois such deeds and other instruments, and there shall be taken or
caused to be taken by the Surviving Corporation and United Illinois such further
and other actions as shall be appropriate or necessary in order to vest or
perfect in or conform of record or otherwise by the Surviving Corporation, the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of United Illinois and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of United Illinois or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
4.4 Abandonment.
At any time before the Effective Date of the Merger, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either United Illinois or United Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of United
Illinois or the sole stockholder of United Delaware or both.
4.5 Amendment.
The Boards of Directors of the Constituent Corporations may amend this
Agreement at any time prior to the filing of this Agreement (or certificate in
lieu thereof) with the Secretaries of State of the States of Delaware and
Illinois, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholders of either Constituent Corporation shall not,
unless approved by the stockholders as required by law: (i) alter or change the
amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such Constituent Corporation; (ii) alter or change
any term of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger; or (iii) alter or change any of the terms and conditions
of this Agreement, if such alteration or change would adversely affect the
holders of any class or series of capital stock of any Constituent Corporation.
4.6 Agreement.
Executed copies of this Agreement will be on file at the principal place of
business of the Surviving Corporation at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000.
4.7 Governing Law.
This Agreement shall in all respects be construed, interpreted and enforced
in accordance with and governed by the laws of the State of Delaware and, so far
as applicable, the merger provisions of the IBCA.
4.8 Counterparts.
This Agreement may be executed in counterparts (including by facsimile),
each of which shall be deemed to be an original and all of which, together,
shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
UNITED TRUST GROUP, INC.
an Illinois corporation
By:
___/s/ Xxxxxxxx X. Miller______________
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
UTG, INC.
a Delaware corporation
By:
___/s/ Xxxxxxxx X. Miller______________
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
