EXHIBIT (J)(4)
--------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
between
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK
a New York insurance company
and
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
a New York insurance company
--------------------------------------------------------------------------------
CONTENTS
RECITALS.......................................................................1
SECTION 1. EFFECTIVE DATE.....................................................1
SECTION 2. CAPITAL STOCK......................................................2
2.1 Capital Stock of AIL..............................................2
2.2 Capital Stock of USL..............................................2
2.3 Common Stock held by AGCL upon Effectiveness of the
Merger...........................................................2
SECTION 3. CHARTER, AND BYLAWS................................................2
3.1 Charter of the Surviving Corporation..............................2
3.2 Bylaws of Surviving Corporation...................................2
SECTION 4. BOARD OF DIRECTORS AND OFFICERS OF SURVIVING CORPORATION...........2
4.1 Board of Directors of the Surviving Corporation...................2
4.2 Officers of the Surviving Corporation.............................2
SECTION 5. GOVERNING LAW AND NAME OF SURVIVING CORPORATION....................2
5.1 Governing Law of Surviving Corporation............................2
5.2 Governing Law Regarding the Maintenance of Separate
Accounts.........................................................2
5.3 Name of Surviving Corporation.....................................3
SECTION 6. EFFECT OF THE MERGER...............................................3
SECTION 7. APPROVAL OF SOLE SHAREHOLDER.......................................3
SECTION 8. ACCESS.............................................................3
SECTION 9. TERMINATION........................................................3
SECTION 10. GENERAL PROVISIONS................................................3
10.1 Further Assurances................................................3
10.2 Waiver............................................................4
10.3 Entire Agreement..................................................4
10.4 Headings..........................................................4
10.5 Governing Law.....................................................4
10.6 Counterparts......................................................4
10.7 No Additional Compensation........................................4
SIGNATORIES....................................................................5
RESTATED CHARTER OF USL.............................................Attachment A
i
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of September 8,
2010 is by and between AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW
YORK, a New York insurance company, incorporated on March 16, 1962 ("AIL") and
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, a New York
insurance company, incorporated on February 25, 1850 ("USL"). (AIL and USL are
sometimes referred to herein as each, the "Constituent Corporation," and
together, the "Constituent Corporations").
RECITALS:
WHEREAS, the Boards of Directors of AIL and USL have determined that it is
advisable for the general welfare of AIL and USL and their respective sole
shareholder, that AIL and USL merge into a single corporation pursuant to this
Agreement, the applicable laws of the State of New York, and the requirements of
the New York State Insurance Department, in a transaction intended to qualify as
a reorganization pursuant to Section 368 of the Internal Revenue Code of 1986,
as amended;
WHEREAS, at the date of this Agreement AGC Life Insurance Company ("AGCL"), a
Missouri corporation, is the sole shareholder of AIL and USL;
WHEREAS, the Board of Directors of each Constituent Corporation has approved
this Agreement and the transaction contemplated hereunder.
NOW, THEREFORE, for and in consideration of the mutual promises and subject to
the conditions contained herein, the Constituent Corporations agree that in
accordance with the applicable laws of the State of New York, AIL shall be
merged with and into USL, with USL being the surviving corporation (which in its
capacity as the ultimate surviving corporation, USL may be referred to as the
"Surviving Corporation").
In this regard, the terms and conditions of the merger and the mode of carrying
it into effect shall be as follows:
SECTION 1. EFFECTIVE DATE
The merger provided for in this Agreement shall become effective as of 11:59
p.m., Eastern Time, on December 31, 2010, or such other time and date as may be
agreed to in writing by the Constituent Corporations (the "Effective Date"),
assuming (i) all necessary corporate and regulatory approvals have been
obtained; and (ii) this Agreement and/or related articles or certificates of
merger have been executed, acknowledged, certified, verified and filed as may be
required under the applicable laws of the State of New York, or as directed by
the Commissioners of Insurance (or similar authority) of the State of New York.
SECTION 2. CAPITAL STOCK
2.1 Capital Stock of AIL. Each share of all issued and outstanding capital
stock of AIL consisting of 16,125 shares of common stock ($200.00 par
value per share) shall be canceled upon the effectiveness of the merger.
2.2 Capital Stock of USL. Each share of all issued and outstanding capital
stock of USL consisting of 1,980,658 shares of common stock ($2.00 par
value per share), upon the effectiveness of the merger, shall continue to
evidence the same number of shares of common stock of the Surviving
Corporation.
2.3 Common Stock held by AGCL upon Effectiveness of the Merger. As a result
of the foregoing, AGCL, the parent company of USL, will continue to hold
the same number of issued and outstanding shares of the common stock of
the Surviving Corporation upon the effectiveness of the merger as it did
in USL prior to the merger. Therefore, upon the effectiveness of the
merger of AIL with and into USL, the capital of USL shall be no larger
than the sum of the capital of the constituent merging companies.
SECTION 3. CHARTER AND BYLAWS
3.1 Charter of the Surviving Corporation. The Charter of Surviving
Corporation, USL, is attached as Attachment A hereto and incorporated
into this Agreement as if fully copied and set forth at length. This
Charter will be the charter of the Surviving Corporation.
3.2 Bylaws of Surviving Corporation. The Bylaws of USL shall remain the
Bylaws of the Surviving Corporation.
SECTION 4. BOARD OF DIRECTORS AND OFFICERS OF SURVIVING CORPORATION
4.1 Board of Directors of the Surviving Corporation. Until the election and
qualification of their successors, the members of the Board of Directors
of the Surviving Corporation shall be the Board of Directors of USL in
office on the Effective Date.
4.2 Officers of the Surviving Corporation. The elected officers of the
Surviving Corporation, who shall continue to serve in office at the
pleasure of the Board of Directors of the Surviving Corporation, shall be
the elected officers of USL on the Effective Date.
SECTION 5. GOVERNING LAW AND NAME OF SURVIVING CORPORATION
5.1 Governing Law of Surviving Corporation. Following the effectiveness of
the merger, the Surviving Corporation shall be governed by the laws of
the State of New York.
5.2 Governing Law Regarding the Maintenance of Separate Accounts. The
separate accounts of AIL, each of which is a unit investment trust
registered with the Securities and Exchange Commission under the
Investment Company Act of 1940, and each of which will be transferred to
USL upon the effectiveness of the merger proposed herein, will be
2
maintained by USL in accordance with the applicable federal and New York
insurance laws and regulations.
5.3. Name of Surviving Corporation. The name of the Surviving Corporation
shall continue to be "The United States Life Insurance Company in the
City of New York," and the Surviving Corporation will conduct business as
authorized by its charter, as amended.
SECTION 6. EFFECT OF THE MERGER
On the Effective Date, the existence of AIL as a distinct corporate entity shall
cease. Accordingly, under the applicable laws of the State of New York, AIL is
treated as if it transferred all of its assets and liabilities to USL in deemed
exchange for USL common shares which, in turn, are deemed distributed to AGCL in
deemed exchange for cancellation of all the AIL shares. On the Effective Date,
the Surviving Corporation shall succeed, without other deed or transfer, to all
the respective rights, franchises, interests, and property, real, personal or
mixed, of AIL and the Surviving Corporation shall be subject to all the debts
and liabilities of AIL in the same manner as if the Surviving Corporation had
itself incurred the debts and liabilities.
SECTION 7. APPROVAL OF SOLE SHAREHOLDER
This Agreement has been approved as provided by the applicable laws of the State
of New York by AGCL, the current sole shareholder of AIL and USL.
SECTION 8. ACCESS
From the date of this Agreement to the Effective Date, each Constituent
Corporation shall provide the other Constituent Corporation with such
information and permit the other's officers and representatives such access to
its properties and books and records as the other may from time to time
reasonably request.
SECTION 9. TERMINATION
9.1 Circumstances of Termination. This Agreement may be terminated
(notwithstanding approval by the sole shareholder of each of the parties
hereto) by the Board of Directors of either of the Constituent
Corporations at any time prior to the Effective Date, or as may otherwise
be permitted by applicable law.
9.2 Effect of Termination. In the event of the termination of this Agreement
pursuant to Section 8.1 above, each party to this Agreement shall pay the
costs and expenses incurred by it in connection with this Agreement and
no party (or any officer, director or shareholder of such party) shall be
liable to any other party for any costs, expenses, damages, or loss of
anticipated profits hereunder.
SECTION 10. GENERAL PROVISIONS
10.1 Further Assurances. At any time, and from time to time, prior to or after
the Effective Date, each party shall execute such additional instruments
and take such additional
3
actions as may be reasonably requested by the other party to confirm
title to any property vested in the Surviving Corporation hereunder or
otherwise to carry out the intent and purposes of this Agreement.
10.2 Waiver. Any failure on the part of either party hereto to comply with any
of its obligations, agreements, or conditions hereunder may only be
waived in writing by the party to whom such compliance is owed.
10.3 Entire Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the
parties hereto relating to the transactions contemplated herein or the
subject matter hereof.
10.4 Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
10.5 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
10.6 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.
10.7 No Additional Compensation. No director, officer, agent, or employee of
AIL or USL 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, compensation, bonuses, and employee
benefits currently being paid to such directors, officers, agents, and
employees in their usual capacity as such.
4
IN WITNESS WHEREOF, AIL and USL, pursuant to authority duly given by their
respective Boards of Directors, and consistent with the approvals of the merger
by their respective sole shareholders, have caused this Agreement to be executed
as of the day and year first above written.
AMERICAN INTERNATIONAL LIFE
ASSURANCE COMPANY OF NEW YORK
(Corporate Seal)
By: ------------------------------
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇, President
and Chief Executive Officer
ATTEST:
By: ------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice President,
General Counsel and Secretary
THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
(Corporate Seal)
By: ------------------------------
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇, President
and Chief Executive Officer
ATTEST:
By: -------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice President,
General Counsel and Secretary
5
ATTACHMENT A
CHARTER OF
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
CHARTER
of
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
ARTICLE I
NAME
The name of the Company shall be The United States Life Insurance Company
in the City of New York.
ARTICLE II
PRINCIPAL OFFICE
The Company shall be located and have its principal place of business in
the City and State of New York.
ARTICLE III
NATURE OF BUSINESS
Section 1. The kinds of insurance to be transacted by the Company shall
be "Life Insurance", "Annuities", "Accident and Health Insurance", as specified
in paragraphs 1, 2 and 3 of Section 1113 (a) of the Insurance Law of the State
of New York, as now or hereafter amended, together with any other kind or kinds
of business necessarily or properly incidental to the kinds of insurance
business which the Company is authorized to do.
Section 2. Definitions
(a) "Life Insurance," means every insurance upon the lives of human beings,
and every insurance appertaining thereto, including the granting of
endowment benefits, additional benefits in the event of death by accident,
additional benefits to safeguard the contract from lapse, accelerated
payments of part or all of the death benefit or a special surrender value
upon (A) diagnosis of terminal illness defined as a life expectancy of
twelve months or less, (B) diagnosis of a medical condition requiring
extraordinary medical care or treatment regardless of life expectancy, (C)
certification by a licensed health care practitioner of any condition which
requires continuous care for the remainder of the insured's life in an
eligible facility or at home when the insured is chronically ill as defined
by Section 7702(B) of the Internal Revenue Code and regulations thereunder,
provided the accelerated payments qualify under Section 101(g)(3) of the
Internal Revenue Code and all other applicable sections of federal law in
order to maintain favorable tax treatment, or (D) certification by a
licensed health care practitioner that the insured is chronically ill as
defined by Section 7702(B) of the Internal Revenue Code and regulations
thereunder, provided the accelerated payments qualify under Section
101(g)(3) of the Internal Revenue Code and all other applicable sections of
federal law in order to maintain favorable tax treatment and the insurer
that issues such policy is a qualified long term care insurance carrier
under Section 4980c of the Internal Revenue
Code or provide a special surrender value, upon total and permanent
disability of the insured, and optional modes of settlement of proceeds.
"Life insurance" also includes additional benefits to safeguard the
contract against lapse in the event of unemployment of the insured or in
the event the insured is a resident of a nursing home. Amounts paid the
insurer for life insurance and proceeds applied under optional modes of
settlement or under dividend options may be allocated by the insurer to
one or more separate accounts pursuant to section four thousand two
hundred forty of this chapter.
(b) "Annuities," means all agreements to make periodical payments for a
period certain or where the making or continuance of all or some of a
series of such payments, or the amount of any such payment, depends upon
the continuance of human life, except payments made under the authority
of paragraph one hereof. Amounts paid the insurer to provide annuities
and proceeds applied under optional modes of settlement or under dividend
options may be allocated by the insurer to one or more separate accounts
pursuant to section four thousand two hundred forty of this chapter.
(c) "Accident and health insurance," means (i) insurance against death or
personal injury by accident or by any specified kind or kinds of accident
and insurance against sickness, ailment or bodily injury, including
insurance providing disability benefits pursuant to article nine of the
workers' compensation law, except as specified in item (ii) hereof; and
(ii) non-cancellable disability insurance, meaning insurance against
disability resulting from sickness, ailment or bodily injury (but
excluding insurance solely against accidental injury) under any contract
which does not give the insurer the option to cancel or otherwise
terminate the contract at or after one year from its effective date or
renewal date.
Section 3. The Company shall also have the general rights, powers and
privileges of a corporation, as the same now or hereafter are declared by the
laws of the State of New York, and any and all other rights, powers and
privileges now or hereafter granted by the laws of the State of New York to
stock life insurance companies having power to do the kinds of business
hereinabove referred to.
ARTICLE IV
EXERCISE OF CORPORATE POWERS
The corporate powers of the Company shall be exercised by a Board of
Directors and such committees, officers and agents as the Board of Directors may
appoint, authorize or elect.
ARTICLE V
BY-LAWS
The Board of Directors shall have power to make such by-laws, rules and
regulations as it may deem necessary or proper for the regulation of the
business affairs of the Company not inconsistent with this Charter or the laws
of the State of New York, and to alter, amend, rescind or suspend any by-laws,
rules and regulations of the Company by a majority vote of the entire Board of
Directors.
2
ARTICLE VI
DIRECTORS
Section 1. The full Board of Directors shall be elected annually by the
stockholders at their annual meeting held on the last Thursday of April each
year. Every stockholder possessing the right to vote shall be entitled to one
vote, in person or by proxy duly authorized in writing, for each share of
Capital Stock standing in his name on the books of the Company.
Section 2. The Board of Directors of the Company shall consist of not
less than seven (7) nor more than thirteen (13) persons.
Section 3. At all times the majority of the Directors shall be citizens
and residents of the United States, and at least one (1) Director shall be a
resident of the State of New York.
Section 4. A Director need not be a stockholder or a policyholder of the
Company.
Section 5. Vacancies in the Board of Directors shall be filled as
provided in the By-Laws.
Section 6. Members of the Board of Directors shall continue in office
until the election or appointment of their successors.
ARTICLE VII
OFFICERS
The Board of Directors shall elect the officers of the Company at the
times and in the manner provided in the By-Laws. Vacancies may be filled at any
meeting of the Board of Directors.
ARTICLE VIII
CAPITAL STOCK
Section 1. The authorized Capital of the Company shall be Three Million
Nine Hundred Sixty-One Thousand Three Hundred Sixteen dollars ($3,961,316),
represented by One Million Nine Hundred Eighty Thousand Six Hundred Fifty Eight
(1,980,658) shares of Capital Stock of the par value of Two Dollars ($2.00) per
share, which shall be personal property transferable on the books of the
Company, according to law and the By-Laws of the Company.
Section 2. The holders of the Capital Stock shall be entitled to receive
dividends, after such have been approved by the Superintendent of the New York
Insurance Department, on the amount of stock held by them respectively in such
amounts and at such times as the same may be declared by the Board of Directors
out of the surplus of the Company, applicable thereto under and pursuant to the
laws of the State of New York.
3
ARTICLE IX
INDEMNIFICATION
The Company will provide indemnity to its Directors and officers to the
fullest extent allowed by law as set forth in the By-Laws, as such By-Laws may
be amended from time to time. The Board of Directors in its discretion shall
have power on behalf of the Company to indemnify to the fullest extent of the
law any person, other than a Director or officer, made a party to any action,
suit or proceeding by reason of the fact that he, his testator or intestate is
or was an employee of the Company.
ARTICLE X
LIMITATION OF DIRECTORS' LIABILITY
No Director of the Company shall be personally liable to the Company or
any of its shareholders for damages for any breach of duty as a Director;
provided, however, that the foregoing provision shall not eliminate or limit (i)
the liability of a Director if a judgment or other final adjudication adverse to
the Director establishes that the Director's acts or omissions were in bad faith
or involved intentional misconduct or were acts or omissions which (a) the
Director knew or reasonably should have known violated the Insurance Law or (b)
violated a specific standard of care imposed on Directors directly, and not by
reference, by a provision of the Insurance Law, or a regulation promulgated
thereunder, or constituted a knowing violation of any other law or that the
Director personally gained in fact a financial profit or other advantage to
which the Director was not legally entitled; or (ii) the liability of a Director
for any act or omission prior to the adoption of this amendment by the
shareholder of the Company.
ARTICLE XI
DURATION OF THE COMPANY
The duration of the Company shall be perpetual.
4