AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of [•], 2011 (this “Agreement”), is
entered into by and between EverBank Financial Corp, a Florida corporation (“EverBank
(FL)”), and EverBank Financial Corp, a Delaware corporation (“EverBank (DE)”).
EverBank (FL) and EverBank (DE) are hereinafter sometimes collectively referred to as the
“Constituent Corporations.”
W I T N E S S E T H :
WHEREAS, EverBank (FL) is a corporation duly organized and existing under the laws of the
State of Florida;
WHEREAS, EverBank (DE) is a corporation duly organized and existing under the laws of the
State of Delaware and a wholly-owned subsidiary of EverBank (FL);
WHEREAS, the respective Boards of Directors of EverBank (FL) and EverBank (DE) have determined
that it is advisable and in the best interests of such corporations and their stockholders that
EverBank (FL) merge with and into EverBank (DE) upon the terms and subject to the conditions set
forth in this Agreement;
WHEREAS, for United States federal income tax purposes, the parties hereto intend the Merger
(as defined below) shall qualify as a “reorganization” within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations
promulgated thereunder, and this Agreement is hereby adopted as a plan of reorganization for
purposes of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder;
WHEREAS, the shareholders of EverBank (FL) have approved this Agreement, by execution of
written consents in accordance with Section 607.1107 of the Florida Business Corporation Act;
WHEREAS, EverBank (FL), in its capacity as the sole stockholder of EverBank (DE) has approved
this Agreement, by execution of a written consent in accordance with Section 228 of the Delaware
General Corporation Law.
NOW, THEREFORE, in consideration of the premises and mutual agreements and covenants herein
contained, EverBank (FL) and EverBank (DE) hereby agree as follows:
1. Merger. EverBank (FL) shall be merged with and into EverBank (DE) (the
“Merger”) such that EverBank (DE) shall be the surviving corporation (hereinafter sometimes
referred to as the “Surviving Corporation”). Appropriate documents necessary to effectuate
the Merger shall be filed with the Secretaries of State of the States of Florida and Delaware and
the Merger shall become effective at the time
provided by applicable law (the “Effective Time”).
2. Governing Documents. The Certificate of Incorporation of EverBank (DE) shall be
the Certificate of Incorporation of the Surviving Corporation, and upon the consummation of the
Merger, shall be amended and restated as attached hereto as Exhibit A, and the By-Laws of
EverBank (DE) shall be the By-laws of the Surviving Corporation, and upon the consummation of the
Merger, shall be amended and restated as attached hereto as Exhibit B.
3. Directors. The persons who are directors of EverBank (DE) immediately prior to the
Effective Time shall, after the Effective Time, be the directors of the Surviving Corporation,
without change until their successors have been duly elected and qualified in accordance with the
Certificate of Incorporation and By-laws of the Surviving Corporation.
4. Officers. The persons who are officers of EverBank (FL) immediately prior to the
Effective Time shall, after the Effective Time, be the officers of the Surviving Corporation,
without change until their successors have been duly elected and qualified in accordance with the
Certificate of Incorporation and By-laws of the Surviving Corporation.
5. Succession. At the Effective Time, the separate corporate existence of EverBank
(FL) shall cease and (i) all the rights, privileges, powers and franchises of a public and private
nature of each of the Constituent Corporations, subject to all the restrictions, disabilities and
duties of each of the Constituent Corporations; (ii) all assets, property, real, personal and
mixed, belonging to each of the Constituent Corporations; and (iii) all debts due to each of the
Constituent Corporations on whatever account, including stock subscriptions and all other things in
action; shall succeed to, be vested in and become the property of the Surviving Corporation without
any further act or deed as they were of the respective Constituent Corporations. The title to any
real estate vested by deed or otherwise and any other asset, in either of such Constituent
Corporations shall not revert or be in any way impaired by reason of the Merger, but all rights of
creditors and all liens upon any property of EverBank (FL) shall be preserved unimpaired. To the
extent permitted by law, any claim existing or action or proceeding pending by or against either of
the Constituent Corporations may be prosecuted as if the Merger had not taken place. All debts,
liabilities and duties of the respective Constituent Corporations shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as if such debts,
liabilities and duties had been incurred or contracted by it. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of EverBank (FL), its shareholders, Board of
Directors and committees thereof, officers and agents that were valid and effective immediately
prior to the Effective Time, shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Surviving Corporation and shall be as
effective and binding thereon as the same were with respect to EverBank (FL). The employees and
agents of EverBank (FL) shall become the employees and agents of the Surviving Corporation and
continue to be entitled to the same rights and benefits that they enjoyed as
2
employees and agents of EverBank (FL).
6. 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
EverBank (FL) such deeds and other instruments, and there shall be taken or caused to be taken by
it all such further and other action, as shall be appropriate, advisable or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of EverBank (FL), and otherwise to carry out the purposes of this Agreement. The
officers and directors of the Surviving Corporation are fully authorized in the name and on behalf
of EverBank (FL) or otherwise, to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
7. Conversion of Shares. At the Effective Time, by virtue of the Merger and without
any action on the part of the holder thereof, (i) each share of EverBank (FL) common stock, par
value $0.01 per share (“EverBank (FL) Common Stock”), issued and outstanding immediately
prior to the Effective Time shall be changed and converted into one (1) validly issued, fully paid
and non assessable share of EverBank (DE) common stock, par value $0.01 per share (“EverBank
(DE) Common Stock”); (ii) each share of EverBank (FL) Series A 6% Cumulative Convertible
Preferred Stock, par value $0.01 per share (“EverBank (FL) Series A Preferred Stock”),
issued and outstanding immediately prior to the Effective Time shall be changed and converted into
fifteen (15) validly issued, fully paid and non assessable shares of EverBank (DE) Common Stock;
(iii) each share of EverBank (FL) 4% Series B Cumulative Participating Perpetual Pay In Kind
Preferred Stock, par value $0.01 per share (“EverBank (FL) Series B Preferred Stock”),
issued and outstanding immediately prior to the Effective Time shall be changed and converted into
one hundred sixteen and ninety-two hundredths (116.92) validly issued, fully paid and non
assessable shares of EverBank (DE) Common Stock and (iv) each share of EverBank (DE) Common Stock
issued and outstanding immediately prior to the Effective Time and held by EverBank (FL) shall be
cancelled without any consideration being issued or paid therefor. After the Effective Time, the
Surviving Corporation shall reflect in its stock ledger the number of shares of EverBank (DE)
Common Stock to which each shareholder of EverBank (FL) is entitled pursuant to the terms hereof.
8. Fractional Shares. No fractional shares of DE Common shall be issued upon the
conversion of any shares of EverBank (FL) Common Stock, EverBank (FL) Series A Preferred Stock or
EverBank (FL) Series B Preferred Stock. If the conversion of any shares of EverBank (FL) Common
Stock results in a fractional share of DE Common Stock, the Surviving Corporation shall pay cash in
lieu thereof in an amount equal (computed to the nearest cent) to the same fraction of the closing
price of the DE Common Stock, traded on the New York Stock Exchange (the “NYSE”) on a “when
issued trading” basis, as reported on the NYSE website, on the second trading day immediately
preceding the Effective Time. Pursuant to the Amended and Restated Articles of Incorporation of
EverBank (FL) (“Articles of Incorporation”), if the conversion of any shares of EverBank
(FL) Series A Preferred Stock results in a fractional
3
share of DE Common Stock, the Surviving Corporation shall pay cash in lieu thereof in an amount
equal to such fraction multiplied by the issuance price of such share of EverBank (FL) Series A
Preferred Stock. Pursuant to the Articles of Incorporation, if the conversion of any shares of
EverBank (FL) Series B Preferred Stock results in a fractional share of DE Common Stock, the
Surviving Corporation shall pay cash in lieu thereof in an amount equal (computed to the nearest
cent) to the same fraction of the closing price of the DE Common Stock, traded on the NYSE on a
“when issued trading” basis and as reported on the NYSE website, on the second trading day
immediately preceding the Effective Time. No such holder shall be entitled to dividends, voting
rights or any other rights in respect of any fractional share.
9. Amendment. The parties hereto, by mutual consent of their respective Boards of
Directors, may amend, modify or supplement this Agreement prior to the Effective Time.
10. Counterparts. This Agreement may be executed in one or more counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
11. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
12. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to the choice or conflict of law
provisions contained therein to the extent that the application of the laws of another jurisdiction
will be required thereby.
4
IN WITNESS WHEREOF, EverBank (FL) and EverBank (DE) have caused this Agreement to be executed
and delivered as of the date first written above.
| EverBank Financial Corp, a Florida corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| EverBank Financial Corp, a Delaware corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
5
