Exhibit 10(h)
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of October 17,
2001 (the "Agreement"), by and between EMPIRE INSURANCE COMPANY ("Empire") and
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CENTURION INSURANCE COMPANY ("Centurion"), each a New York property and casualty
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insurance corporation with its address at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, Empire is a corporation duly organized and existing
under the laws of the State of New York, having been originally organized on
February 2, 1925 under Article 12 of the New York Insurance Code;
WHEREAS, Centurion is a corporation duly organized and
existing under the laws of the State of New York, having been incorporated on
July 21, 1987 under Article 12 of the New York Insurance Code;
WHEREAS, Empire has authorized capital consisting of 120,000
shares of common shares of par value of $100.00 each, 113,092 of which are duly
issued and outstanding and are indirectly owned 100% by Leucadia National
Corporation, a New York corporation;
WHEREAS, Centurion has authorized capital consisting of 500
shares of common shares of par value of $1,000.00 each, all of which are duly
issued and outstanding and are owned by Empire;
WHEREAS, each of Empire and Centurion is authorized under the
laws of the State of New York to transact the business of property and casualty
insurance;
WHEREAS, the boards of directors of each of Empire and
Centurion (hereinafter collectively referred to as the "Constituent
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Corporations"), at meetings duly called and held or by unanimous written
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consent, have by resolution declared it advisable that Centurion merge with and
into Empire, with Empire surviving.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements, provisions, covenants, and grants herein contained, the
parties hereby agree as follows:
ARTICLE I
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The name of the corporation to survive the merger (hereinafter
called the "Surviving Corporation") is Empire Insurance Company.
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ARTICLE II
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The identity, existence, purposes, powers, franchises,
licenses, rights and immunities of Empire shall continue unaffected and
unimpaired by the merger, and the corporate identity, existence, purposes,
powers, functions, licenses, rights and immunities of Centurion
shall be merged into Empire and Empire shall be fully vested therewith. The
separate existence and organization of Centurion shall cease as soon as this
Agreement shall become effective, and thereupon Empire and Centurion shall
become a single corporation, to wit: Empire, which shall survive such merger and
shall continue to exist under and be governed by the laws of the State of New
York. Said Surviving Corporation shall meet the requirements for authorization
to engage in the insurance business in the State of New York and shall have all
of the rights, privileges, immunities and powers and shall be subject to all of
the duties and liabilities granted and imposed by the New York Insurance Code.
The principal office of the Surviving Corporation shall be 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000.
ARTICLE III
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The Articles of Incorporation of Empire, a copy of which is
attached hereto and incorporated herein be reference, shall be and continue to
be the Articles of Incorporation of the Surviving Corporation, until the same
shall be amended and changed as provided by law.
ARTICLE IV
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The members of the board of directors and the officers of
Empire immediately prior to the Effective Time (as defined below) shall be the
members of the board of directors and officers, respectively, of the Surviving
Corporation, and they shall continue to hold office until their respective
successors shall have been elected and shall qualify pursuant to the By-Laws of
the Surviving Corporation.
ARTICLE V
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At the Effective Time, each share of common shares of
Centurion issued and outstanding immediately before the Effective Time shall be
cancelled.
ARTICLE VI
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This Agreement and/or an appropriate certificate or articles
of merger shall be filed and recorded in accordance with the applicable
provisions of the laws of the State of New York. This Agreement shall take
effect and be deemed and taken to be the agreement and act of merger of the
Constituent Corporations, and the merger shall be and become effective, upon the
filing of this Agreement and Plan of Merger with the office of the Kings County
Clerk.
ARTICLE VII
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Anything herein or elsewhere to the contrary and
notwithstanding, this Agreement may be abandoned at any time prior to the filing
and recording thereof by mutual consent of the Constituent Corporations pursuant
to authority of said Constituent Corporations' boards of directors.
ARTICLE VIII
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At the Effective Time, the Surviving Corporation shall possess
all the rights, privileges, immunities, powers and franchises of a public as
well as of a private nature of each of
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the Constituent Corporations. All property, real, personal and mixed, all debts
due on whatever account, all choses in action, and all and every other interest
of, or belonging to or due to, each of the Constituent Corporations shall be
deemed to be transferred to and vested in such Surviving Corporation.
ARTICLE IX
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At the Effective Time, the Surviving Corporation shall be
responsible and liable for all the liabilities and obligations of each of the
Constituent Corporations. Any claim existing or action or proceeding, pending by
or against either of the Constituent Corporations may be prosecuted to judgement
as if the merger had not taken place, or the Surviving Corporation may be
substituted in its place. Neither the rights of creditors nor any liens upon the
property of either of the Constituent Corporations shall be impaired by the
merger, but such liens shall be limited to the property upon which they were
liens immediately prior to the time of such merger.
ARTICLE X
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If at any time the Surviving Corporation shall deem or be
advised that any further assignment or assurances in law or things are necessary
or desirable to vest or to perfect or confirm, of record or otherwise, in the
Surviving Corporation the title to any property of Centurion acquired or to be
acquired by reason of or as a result of the merger provided by this Agreement,
Centurion and its proper officers and directors shall and will execute and
deliver any and all such proper deeds, assignments and assurances in law and do
all things necessary or proper so to vest, perfect or confirm title to such
property in the Surviving Corporation and otherwise to carry out the purposes of
this Agreement.
ARTICLE XI
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The Surviving Corporation shall pay all the expenses of
carrying this Agreement into effect and of accomplishing the merger.
ARTICLE XII
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For the convenience of the parties and to facilitate the
filing or recording of this Agreement, any number of counterparts thereof may be
executed, and each such executed counterpart shall be deemed to be an original
instrument.
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IN WITNESS WHEREOF, the Boards of Directors and the
shareholders of the Constituent Corporations, having received, reviewed and
accepted this Agreement and Plan of Merger, have caused this Agreement and Plan
of Merger to be signed by the Constituent Corporations and to have the
respective corporate seals of the Constituent Corporations to be hereunto
affixed and attested as of the date first above written and do hereby affirm,
under the penalties of perjury and pursuant to the New York State Insurance Law,
that this Agreement and Plan of Merger is the act and deed of the undersigned
corporations and the statements stated herein are true and correct.
EMPIRE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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[Corporate Seal] Name: Xxxxx X. Xxxxxxx
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Title: Chief Operating Officer
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Attest:
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
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Title: Corporate Secretary
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[Corporate Seal] CENTURION INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Chief Operating Officer
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Attest:
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
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Title: Corporate Secretary
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