<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
---------------
July 1, 1997
Date of report (Date of earliest event reported)
AMERICAN RE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-11688 13-3672116
(State or Other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation or organization) Identification No.)
---------------
555 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08543
(609) 243-4200
(Address including zip code, and telephone number, including area code, of
registrant's principal executive office)
----------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
ITEM 5. OTHER EVENTS.
On July 1, 1997, American Re Corporation ("American Re"), and its parent
company, Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft in Munchen
("Munich Re"), completed the merger of Munich American Reinsurance Company
("MARC") into American Re-Insurance Company, the principal reinsurance
subsidiary of American Re (the "Merger"). Prior to the Merger, MARC was owned
50% by Munich Re, 40% by Allianz Aktiengesellschaft and 10% by VICTORIA
Versicherung AG. In addition, on July 3, 1997, Munich Re contributed the assets
and liabilities of its U.S. Branch to American Re-Insurance Company in exchange
for additional shares of American Re. As a result of these transactions, the
minority interests in MARC held by Allianz Aktiengesellschaft and VICTORIA
Versicherung AG were exchanged for minority interests in American Re common
stock equal to less than 9% on an aggregate basis, and Munich Re continues to
own over 91% of the outstanding common stock of American Re. As a result of
these transactions, American Re-Insurance Company had, on a pro forma basis, as
of March 31, 1997, statutory admitted assets of more than $8 billion and
statutory surplus of more than $2 billion.
A copy of the Press Release dated July 7, 1997 issued by American Re relating to
the transactions is filed as Exhibit 99 and is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
4.1 Agreement and Plan of Merger by and among American Re-Insurance
Company, American Re Corporation, Munich American Reinsurance
Company, Munich Re, Munich Re U. S. Branch, Allianz
Aktiengesellschaft and VICTORIA Versicherung AG dated as of July
1, 1997.
4.2 Domestication Agreement between Munich Re, American Re
Corporation and American Re-Insurance Company, dated as of June
24, 1997 and made effective as of July 3, 1997.
99 American Re Press Release dated July 7, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICAN RE CORPORATION
(Registrant)
/s/ Robert K. Burgess
--------------------------
Robert K. Burgess
Executive Vice President, General
Counsel and Secretary
Dated: July 15, 1997
<PAGE>
INDEX TO EXHIBITS
PAGE NUMBER IN
SEQUENTIAL
EXHIBIT NO. DESCRIPTION NUMBERING SYSTEM
4.1 Agreement and Plan of Merger by and
among American Re-Insurance Company,
American Re Corporation, Munich American
Reinsurance Company, Munich Re, Munich
Re U. S. Branch, Allianz
Aktiengesellschaft and VICTORIA
Versicherung AG dated as of July 1,
1997.
4.2 Domestication Agreement between Munich
Re, American Re Corporation and American
Re-Insurance Company, dated as of June
24, 1997 and made effective as of July
3, 1997.
99 Press Release dated July 7, 1997.
<PAGE>
EXHIBIT 4.1
AGREEMENT
AND
PLAN OF MERGER
MUNICH AMERICAN REINSURANCE COMPANY
AND
AMERICAN RE-INSURANCE COMPANY
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of the 1st day of July,
1997, (the "Agreement"), is by and among American Re-Insurance Company, a
Delaware corporation (the "Company"), American Re Corporation, a Delaware
corporation ("Parent"), and Munich American Reinsurance Company, a New York
corporation ("MARC") and each shareholder of MARC listed on the signature pages
hereof (the "Seller(s)"). Each of MARC and the Company is sometimes referred to
herein as a "Constituent Corporation," and the Company is sometimes referred to
herein as the "Surviving Corporation."
WHEREAS, the Company was originally incorporated under the laws of
Pennsylvania on March 15, 1917 was formerly known as A.R. Insurance, Inc., and
was reincorporated under the laws of New York on July 25, 1933, and was
redomesticated under the laws of Delaware on January 1, 1978, and pursuant to
its Certificate of Incorporation, has an authorized capital stock of 6,000,000
shares, par value $1.50 per share, one vote per share of which 5,470,713 shares
are issued and outstanding; and
WHEREAS, MARC was incorporated under the laws of New York on September
10, 1975, and pursuant to its Charter, has authorized capital stock of 7,000
common shares, par value $1,000.00 per share, one vote per share, and 71,000
preferred shares, par value $1,000.00 per share, nonvoting except as provided by
law, all of which shares of capital stock are issued and outstanding (the "MARC
Stock"); and
WHEREAS, Section 7102(a)(2) of the New York Insurance Law authorizes
the merger of an insurance corporation organized under the laws of New York into
an insurance corporation organized under the laws of another state and Section
4930 of the Delaware Insurance Code authorizes the merger of stock insurers
organized under the laws of another state into a stock insurer organized under
the laws of the State of Delaware; and
WHEREAS, the Boards of Directors of each Constituent Corporation have
each determined that it is in the best interests of such Constituent
Corporation, and their respective shareholders and stockholders, that MARC merge
with and into the Company pursuant to this Agreement and pursuant to Article 71
of the New York Insurance Laws, Chapter 49 of the Delaware Insurance Code, other
applicable laws of the states of New York and Delaware, and the requirements of
the New York State Insurance Department and the Delaware Insurance Department;
and
1
<PAGE>
WHEREAS, the parties hereto intend that the merger contemplated by this
Agreement qualify as a tax-free reorganization pursuant to Section 368 of the
Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations, warranties and agreements herein contained, and for
the purpose of stating the terms and conditions of the merger, the mode of
carrying the same into effect, the treatment of the MARC Stock, and such other
details and provisions as are deemed desirable, the parties hereto have agreed,
and do hereby agree, subject to the terms and conditions hereinafter set forth,
as follows:
I. THE MERGER
1.1 The Merger; Effective Date. On the Effective Date (defined below)
of the merger and in accordance with the provisions of the laws of Delaware and
New York and subject to the terms and conditions hereof, MARC shall be merged
with and into the Company, and the Company, as the Surviving Corporation, shall
continue to exist and be governed by the General Corporation Law of the State of
Delaware and the Delaware Insurance Code and the name of the Surviving
Corporation shall be American Re-Insurance Company.
As soon as practicable following fulfillment of the terms and
conditions provided herein, and provided that this Agreement has not been
terminated or abandoned pursuant to Article VIII hereof, the Company and/or
MARC, as the case may be, will cause all of the following conditions to be
satisfied: (i) the Company will file a power of attorney with the Superintendent
of the New York Insurance Department in compliance with Section 1212 of the New
York Insurance Law; (ii) the Company and MARC will file a duplicate or certified
copy of this Agreement, duly approved by the Commissioner of Insurance of the
State of Delaware, with the Superintendent of the New York Insurance Department
in compliance with Section 7106 of the New York Insurance Law; (iii) the Company
and MARC will cause the Certificate of Merger in substantially the form of
Exhibit 1 hereto (the "Certificate of Merger") to be executed, verified and
delivered for filing with the office of the Secretary of State of the State of
Delaware as provided in Section 252 of the General Corporation Law of Delaware;
(iv) the Company will cause a signed or conformed copy of the Certificate of
Merger, to be recorded in the Office of the Recorder of New Castle County, State
of Delaware, in accordance with the provisions of Section 103 of the General
Corporation Law of Delaware; and (v) the Company will cause a signed or
conformed copy of the Agreement approved by the Superintendent of the New York
Insurance Department and the
2
<PAGE>
Commissioner of Insurance of the State of Delaware, to be filed with the office
of the Clerk of New York County, State of New York, which is the county where
the principal office of MARC is located and in the office of the recording
officer of each county in which MARC's real property is situated, in accordance
with Section 907(h) of the New York Business Corporation Law.
Assuming all necessary corporate and regulatory approvals have been
obtained, and all necessary filings shall have been made, the merger shall
become effective as of 12:01 a.m, July 1, 1997 (hereinafter the "Effective
Date").
1.2 EFFECTS OF THE MERGER. On the Effective Date, the separate
existence of MARC shall cease. The Surviving Corporation shall possess all the
rights, privileges, immunities, powers and franchises of a public as well as of
a private nature, and be subject to all the restrictions, disabilities and
duties of each of the Constituent Corporations; and all and singular, the
rights, privileges, interests, powers and franchises of each of such Constituent
Corporations, and all property, real, personal and mixed, and all debts due to
either of such Constituent Corporations on whatever account as well as all other
things in action or belonging to each of such Constituent Corporations shall be
vested in such Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter as
effectually the property of such Surviving Corporation as they were of such
Constituent Corporations, and the title to any real estate vested by deed or
otherwise, under the laws of the State of Delaware, New York or any other
jurisdiction, in either of such Constituent Corporations, shall not revert or be
in any way impaired by reason of such laws; but all rights of creditors and all
liens upon any property of either of such Constituent Corporations shall be
preserved unimpaired, and all debts, liabilities, obligations, commitments and
duties of such Constituent Corporations shall thenceforth attach to such
Surviving Corporation, and may be enforced against it to the same extent as if
said debts, liabilities, obligations, commitments and duties had been incurred
or contracted by it. No action or proceeding, civil or criminal, then pending by
or against either Constituent Corporation or any policyholder, shareholder,
officer or director thereof, shall be abated or discontinued by the merger but
may be enforced, prosecuted, settled or compromised as if the merger had not
occurred, or the Surviving Corporation may be substituted in place of MARC by
order of the court in which the action or proceeding may be pending.
1.3 CERTIFICATE. The Certificate of Incorporation of the Company as in
effect immediately prior to the Effective Date and as set forth as Exhibit 2
shall be the Certificate of Incorporation of the Surviving Corporation and may
be amended from time to time after the Effective Date as provided by law.
3
<PAGE>
1.4 BY-LAWS. The By-Laws of the Company as in effect immediately prior
to the Effective Date shall continue unchanged as the By-Laws of the Surviving
Corporation until the same shall thereafter be altered, amended or repealed in
accordance with law, the Certificate of Incorporation of the Surviving
Corporation or said By-Laws.
1.5 DIRECTORS AND OFFICERS. (a) From and after the Effective Date,
the members of the Board of Directors of the Surviving Corporation shall consist
of Edward J. Noonan, Mahmoud M. Abdallah, Albert J. Beer, Robert K. Burgess,
Edward B. Jobe, Kenneth J. LeStrange and John N. Lombardo, each of such persons
to serve in accordance with the By-Laws of the Surviving Corporation until his
successor is elected and qualified or until his earlier death, resignation or
removal. If on or after the Effective Date a vacancy shall exist in the Board of
Directors of the Surviving Corporation, such vacancy may thereafter be filled in
the manner provided by law and by the By-Laws of the Surviving Corporation.
(b) From and after the Effective Date, the elected officers of the
Company shall be the elected officers of the Surviving Corporation to serve in
office at the pleasure of the Board of Directors of the Surviving Corporation,
until their successors are elected and qualified or until their earlier death,
resignation or removal.
1.6 APPROVAL BY STOCKHOLDERS. This Agreement has been approved by
Parent, as the sole stockholder of the Company and by the Seller(s), as each and
every stockholder of MARC, as provided by the applicable laws of the states of
Delaware and New York, respectively (collectively the "Stockholders").
II. MODE OF CARRYING THE MERGER INTO EFFECT
2.1 TERMS OF THE MERGER. On the Effective Date, by virtue of the merger
and without any action on the part of the Company, Parent, MARC, the Seller(s)
or any holder of any of the shares, each share of MARC Stock issued and
outstanding immediately prior to the Effective Date shall by virtue of the
merger be canceled and extinguished. Each share of issued and outstanding
capital stock of the Surviving Corporation, consisting of 5,470,713 shares of
capital stock (par value $1.50 per share; one vote per share), on the Effective
Date shall continue to evidence the same number of shares of the capital stock
of the Surviving Corporation. As a result, the Parent will continue to hold the
same number of issued and outstanding shares of capital stock of the Surviving
Corporation (5,470,713 shares) upon effectiveness of the merger as it did in the
Surviving Corporation prior to the merger. Concurrent with the merger and the
effectiveness of this Agreement, the Parent shall issue to Seller(s) an
additional 25.92804 shares of common stock of Parent ("Parent Shares") with such
rights as are set forth in Parent's amended Certificate of Incorporation with
the
4
<PAGE>
allocation of Parent Shares to each Seller made as specified on EXHIBIT 3 to
this Agreement.
2.2 TAKING OF NECESSARY ACTION; FURTHER ACTION. Parent, MARC,
Seller(s) and the Company, respectively, shall take all such lawful action as
may be necessary or appropriate in order to effectuate the merger as promptly as
possible. If at any time after the Effective Date any further action is
necessary or desirable to carry out the purposes of this Agreement, and to vest
the Surviving Corporation with full right, title and possession of all assets,
property, rights, privileges, powers, and franchises of either of the
Constituent Corporations, the officers and directors 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.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to, and agrees with,
Seller(s) and MARC as follows:
3.1 ORGANIZATION AND QUALIFICATION, ETC. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has full power and authority (corporate and other) to own
its properties and to carry on its business as it is now being conducted. Copies
of the Company's Certificate of Incorporation, as amended, and By-Laws, as
amended, have been delivered to Seller(s) and are complete and correct and, as
so amended, in full force and effect. The Company is duly authorized to transact
insurance and reinsurance under the laws of the States of New York and Delaware.
Copies of the Company's Certificates of Authority in the States of New York and
Delaware have been delivered to Seller(s) and are in full force and effect.
3.2 AUTHORITY. The Company is in compliance with all requirements
relating to foreign corporations doing business in New York. The Company has
full power and authority to execute and deliver this Agreement and to perform
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and is valid and binding upon the Company in accordance
with its terms.
3.3 CAPITALIZATION. The authorized capital stock of the Company
consists of 6,000,000 shares of capital stock. As of March 31, 1997, there were
issued and outstanding 5,470,713 shares of capital stock, all of which shares
were validly issued and fully paid and are nonassessable. Since March 31, 1997
there have been no changes in the authorized, issued or outstanding shares of
the Company. There are no shares reserved for issuance and the Company has no
commitment to issue or sell any shares or any securities or obligations
convertible into or exchangeable for, or giving any person any right to
subscribe for or
5
<PAGE>
acquire from the Company, any shares and no securities or obligations
representing such rights are outstanding.
3.4 STOCKHOLDER CONSENT. The stockholder vote required by law to
approve and adopt this Agreement on behalf of the Company is a majority of the
issued and outstanding stock of the Company's one class of capital stock
entitled to vote thereon.
IV. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to, and agrees with, the Seller(s) and
MARC as follows:
4.1 ORGANIZATION AND QUALIFICATION, ETC. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full power and authority (corporate and other) to own its
properties and to carry on its business as it is now being conducted.
4.2 AUTHORITY. Parent has full power and authority to execute and
deliver this Agreement and to perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Parent and is
valid and binding upon Parent in accordance with its terms.
V. REPRESENTATIONS AND WARRANTIES OF MARC
MARC hereby represents and warrants to, and agrees with, Parent and
Company as follows:
5.1 ORGANIZATION AND QUALIFICATION, ETC. MARC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. Copies of MARC's Charter and By-Laws have been delivered to the
Company and are complete and correct and in full force and effect. MARC is duly
authorized to transact insurance and reinsurance under the laws of the States of
New York and Delaware. Copies of MARC's Certificates of Authority in the States
of New York and Delaware have been delivered to the Company and are in full
force and effect.
5.2 AUTHORITY. MARC has full power and authority to execute and deliver
this Agreement, to perform the transactions contemplated hereby and to
consummate the merger. This Agreement has been duly authorized, executed and
delivered by MARC and is valid and binding upon MARC in accordance with its
terms.
5.3 CAPITALIZATION. The authorized capital stock of MARC consists of
71,000 shares of preferred stock and 7,000 shares of common stock. As of March
31, 1997, there
6
<PAGE>
were issued and outstanding 71,000 shares of preferred stock and 7,000 shares of
common stock, all of which shares were validly issued and fully paid and are
nonassessable. Since March 31, 1997, there have been no changes in the
authorized, issued or outstanding shares of MARC. There are no shares reserved
for issuance and MARC has no commitment to issue or sell any shares or any
securities or obligations convertible into or exchangeable for, or giving any
person any right to subscribe for or acquire from MARC, any shares and no
securities or obligations representing such rights are outstanding.
5.4 SHAREHOLDER CONSENT. The shareholder vote required by law to
approve and adopt this Agreement on behalf of MARC is two-thirds of the issued
and outstanding shares of MARC's one class of common shares entitled to vote
thereon.
VI. REPRESENTATIONS AND WARRANTIES OF SELLER(S)
Each Seller represents and warrants to, and agrees with, the Parent and
Company as follows:
6.1 ORGANIZATION AND QUALIFICATION, ETC. Each Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of Germany, and has full power and authority (corporate and other) to
own its properties and to carry on its business as it is now being conducted.
6.2 AUTHORITY. Each Seller has full power and authority to execute and
deliver this Agreement and to perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by each Seller and is
valid and binding upon such Seller in accordance with its terms.
VII. MUTUAL COVENANTS AND AGREEMENTS
7.1 REASONABLE EFFORTS. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
promptly take, or cause to be taken, all action and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and regulations,
or otherwise, including, without limitation, attempting to obtain all necessary
consents and approvals of, permits from, and assurances of no objection to the
merger at other rulings from the appropriate governmental authorities to
consummate and make effective, as soon as practicable, the transactions
contemplated by this Agreement. In case at any time after the Effective Date any
further action is necessary, proper or advisable to carry out the purposes of
this Agreement, as soon as reasonably
7
<PAGE>
practicable, each party to this Agreement shall cause its proper officers and
directors to take all such necessary action to effectuate such purpose.
7.2 ACCESS. From the date hereof to the Effective Date, each party
shall provide the other parties with such information and permit the other
parties' officers and representatives such access to its properties and books
and records as the other parties may from time to time reasonably request.
7.3 NOTIFICATION OF CERTAIN MATTERS. Each party shall give prompt
notice to the other parties, of (i) the occurrence, or failure to occur, of any
event which occurrence or failure would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect at any time from the date hereof to the Effective Date and (ii) any
material failure by such party, or any officer, director, employee or agent
thereof, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder.
VIII. TERMINATION OR ABANDONMENT
8.1 TERMINATION OR ABANDONMENT. Notwithstanding the approval of the
Stockholders, this Agreement and the merger may be terminated and abandoned at
any time prior to the Effective Date, or as may otherwise be permitted by
applicable law, by the Board of Directors of either of the Constituent
Corporations.
8.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement and the merger pursuant to the foregoing
provisions of this Article VIII, this Agreement shall become void and have no
effect, with no liability on the part of the party electing to cause such
termination or abandonment or its Stockholders or directors or officers in
respect thereof.
IX. MISCELLANEOUS
9.1 WAIVER. At any time prior to the Effective Date, any party may (i)
agree to extend the time for performance of any of the obligations or other acts
of the other parties hereto, (ii) waive any inaccuracies in the representations
and warranties of the other parties contained herein or in any document
delivered pursuant hereto, and (iii) waive any conditions or compliance by the
other parties with any of the agreements contained herein. Any agreement on the
part of a party hereto to any such waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
8
<PAGE>
9.2 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if sent by registered or
certified mail, postage prepaid, addressed,
If to Company: American Re-Insurance Company
555 College Road East
Princeton, New Jersey 08543-5241
Attention: Robert K. Burgess, Executive Vice
President, General Counsel and Secretary
If to Parent: American Re Corporation
555 College Road East
Princeton, New Jersey 08543-5421
Attention: Robert K. Burgess, Executive Vice
President, General Counsel and Secretary
If to MARC: Munich American Reinsurance Company
560 Lexington Avenue
New York, New York 10022-6890
Attention: William J. Albinger, Jr., Senior
Vice President, General Counsel and
Secretary
If to Seller(s): Names and Addresses as noted on Exhibit 3
or such other address as shall be furnished in writing by any party to the other
prior to the giving of applicable notice or communication, and such notice or
communication shall be deemed to have been given as of the date so mailed. Any
such notice or communication to or by Parent shall be deemed to be a notice or
communication to or by the Company, and any such notice or communication to or
by any Seller shall be deemed to be a notice or communication by MARC, unless
otherwise specifically stated therein.
9.3 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.
9.4 HEADINGS. The headings or articles and sections herein are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
9.5 VARIATION AND AMENDMENT. This Agreement (including the documents
and instruments referred to herein or therein) (a) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof,
(b) is not intended to confer upon any other person any rights or remedies
hereunder and (c) shall not be assigned by operation of law or otherwise, except
with the written consent of the other party hereto. This Agreement may be varied
or
9
<PAGE>
amended only by written action of the Company, Parent, Seller(s) and MARC at
any time prior to the Effective Date, provided no such variance or amendment
after the Stockholders vote upon the merger shall reduce the consideration to
which each Seller is to become entitled as of the Effective Date pursuant to
Section 2.1.
9.6 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties included or provided for in this Agreement shall
survive the Effective Date.
9.7 EXPENSES. Whether or not the merger is consummated, all costs
and expenses incurred in connection with this agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
9.8 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without regard
to principles of conflict of laws.
9.9 NO ADDITIONAL COMPENSATION. No director, officer, agent or
employee of Parent, Seller(s), MARC or the Company 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, compensations,
bonuses and employee benefits currently being paid to such directors, officers,
agents and employees in their usual capacity as such.
[THIS SPACE LEFT INTENTIONALLY BLANK]
10
<PAGE>
IN WITNESS WHEREOF, pursuant to authority duly given by their
respective Board of Directors and consistent with the approvals of the merger by
the Stockholders, this Agreement and Plan of Merger has been signed on behalf of
Parent, MARC, the Seller(s) and the Company by a duly authorized officer of each
corporation, all as of the date first above written.
AMERICAN RE-INSURANCE COMPANY
Attest: /s/ Robert K. Burgess By: /s/ Edward J. Noonan
------------------------------ --------------------------------
Secretary Name: EDWARD J. NOONAN
Title: Chairman, President and
Chief Executive Officer
(Seal)
AMERICAN RE CORPORATION
Attest: /s/ Robert K. Burgess By: /s/ Edward J. Noonan
------------------------------ --------------------------------
Secretary Name: EDWARD J. NOONAN
Title: President and Chief
Executive Officer
(Seal)
MUNICH AMERICAN REINSURANCE
COMPANY
Attest: /s/ William J. Albinger, Jr. By: /s/ John N. Lombardo
------------------------------ --------------------------------
Secretary Name: JOHN N. LOMBARDO
Title: President and Chief
Executive Officer
(Seal)
<PAGE>
MuNCHENER RuCKVERSICHERUNGS-
GESELLSCHAFT AKTIENGESELLSCHAFT
IN MuNCHEN
By: /s/ Dr. Schinzler
Attest: /s/ Udo Knoke By: /s/ Dr. Hasford
------------------------------ --------------------------------
Secretary Name:Dr. Schinzler/Dr. Hasford
Title: President /Member of the
Board
(Seal)
MUNICH MANAGEMENT CORPORATION,
U.S. MANAGER OF MUNICH REINSURANCE
COMPANY, UNITED STATES BRANCH
Attest: /s/ William J. Albinger, Jr. By: /s/ Hans Rathnow
------------------------------ --------------------------------
Secretary Name: Hans Rathnow
Title: President
(Seal)
ALLIANZ AKTIENGESELLSCHAFT
By: /s/ Dr. Helga Jung
Attest: /s/ Stefan Theissing
------------------------------ --------------------------------
Secretary Name: Dr. Helga Jung
Title: Vice President
Name: Stefan Theissing
Title: Vice President
(Seal)
VICTORIA VERSICHERUNG AG
By: /s/ Dr. E. Jannott
Attest: /s/ Dr. F.W. Hopp
------------------------------ --------------------------------
Secretary Name: Dr. E. Jannott
Title: President
Name: Dr. F.W. Hopp
Title: Member of the Board
(Seal)
<PAGE>
EXHIBIT 1 TO AGREEMENT AND PLAN OF MERGER
Certificate of Merger
<PAGE>
CERTIFICATE OF MERGER
MERGING
MUNICH AMERICAN REINSURANCE COMPANY
WITH AND INTO
AMERICAN RE-INSURANCE COMPANY
(Pursuant to Section 907 of the Business Corporation Law of the
State of New York and Section 252 of the General Corporation Law
of the State of Delaware)
American Re-Insurance Company, a Delaware corporation ("AMERICAN RE"),
DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That Munich American Reinsurance Company, a New York corporation
("MARC"), was originally incorporated on September 10, 1975 pursuant to the
laws of the State of New York, and pursuant to its Charter, has authorized
capital stock of 7,000 common shares, par value $1,000 per share, one vote
per share, and 71,000 preferred shares, par value $1,000 per share, nonvoting
except as provided by law, all of which authorized shares of capital stock
are issued and outstanding. The shareholder vote required by law to approve
and adopt this Certificate of Merger on behalf of MARC is two-thirds of the
issued and outstanding shares of MARC's one class of common shares entitled
to vote thereon. MARC was first granted a certificate of authority in New
York on December 29, 1975.
SECOND: That American Re was originally incorporated on March 15, 1917,
pursuant to the laws of the State of Pennsylvania, and was reincorporated
under the laws of the State of New York on July 25, 1933, and was redomiciled
under the laws of the State of Delaware on January 1, 1978 and pursuant to
its Certificate of Incorporation, has an authorized capital stock of
6,000,000 shares, par value $1.50 per share, one vote per share, of which
5,470,713 shares are issued and outstanding. The stockholder vote required by
law to approve and adopt this Certificate of Merger on behalf of American Re
is a majority of the issued and outstanding stock of American Re's one class
of capital stock entitled to vote thereon. American Re was first granted a
certificate of authority in New York on October 13, 1917.
THIRD: That effective June 16, 1997, the Board of Directors of American
Re approved and adopted by unanimous written consent in lieu of a meeting,
the Merger Agreement (defined below), and at 10:30 a.m. on June 16, 1997, at
a meeting held at 560 Lexington Avenue, New York, New York 10022, the Board
of Directors of MARC approved and adopted the Merger Agreement (defined
below).
FOURTH: That an Agreement and Plan of Merger, dated as of July 1, 1997,
(the "MERGER AGREEMENT"), among American Re Corporation, a Delaware
corporation and the sole stockholder of American Re ("ARC"), each and every
shareholder of MARC (the "MARC Shareholder(s)"), American Re, and MARC was
submitted to ARC, as the sole
1
<PAGE>
stockholder of American Re, and to the MARC Shareholder(s) as each and every
shareholder of MARC, and was approved and adopted by each by unanimous
written consent in lieu of a meeting, in accordance with and in compliance
with the laws of the State of New York and the State of Delaware (including
but not limited to Sections 902 and 903 of the Business Corporation Law of
the State of New York and Section 252(c) of the General Corporation Law of
the State of Delaware).
FIFTH: That the Merger Agreement attached hereto as EXHIBIT A has been
approved, adopted, certified, executed, acknowledged and delivered by the
parties thereto in accordance with the laws of the State of New York and the
State of Delaware (including but not limited to Sections 902 and 903 of the
Business Corporation Law of the State of New York and Section 252(c) of the
General Corporation Law of the State of Delaware).
SIXTH: That the merger is permitted by the laws of the State of New York
and the laws of the State of Delaware.
SEVENTH: That the name of the surviving corporation (the "SURVIVING
CORPORATION") shall be American Re-Insurance Company.
EIGHTH: That the effective date of the Merger shall be 12:01 a.m., July
1, 1997.
NINTH: That the Certificate of Incorporation of American Re shall be the
Certificate of Incorporation of the Surviving Corporation.
TENTH: That an executed copy of the Merger Agreement is on file at an
office of the Surviving Corporation at the following address:
555 College Road East
Princeton, New Jersey 08543-5241
ELEVENTH: That a list of the continuing directors of the Surviving
Corporation is attached hereto as EXHIBIT B to serve in office until their
successors are elected and qualified or until their earlier death,
resignation or removal.
TWELFTH: That a copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any shareholder of
MARC or stockholder of American Re.
THIRTEENTH: That subject to the provisions of Section 623 of the Business
Corporation Law of the State of New York, American Re will promptly pay the
shareholder(s) of MARC, the amount, if any, to which they shall be entitled
under the Business Corporation Law of the State of New York relating to the
right of shareholders to receive payment for their shares.
2
<PAGE>
FOURTEENTH: That American Re hereby consents to service of proceess in
New York in any action or special proceeding for the enforcement of any
liability of or obligation of MARC and for the enforcement of the right of
the shareholder(s) of MARC to receive payment for its shares against the
Surviving Corporation.
FIFTEENTH: That American Re hereby designates by power of attorney the
Superintendent of the New York Insurance Department and his successors in
office and authorized deputies, as its true and lawful attorney and agent for
service of process in any action or special proceeding in the manner set
forth in paragraph (b) of Section 1212 of the New York Insurance Law. Copies
of any process served upon the Superintendent of the New York Insurance
Department shall be mailed to the following address:
555 College Road East
Princeton, New Jersey 08543-5241
Attn: Secretary
[THIS SPACE LEFT INTENTIONALLY BLANK]
3
<PAGE>
IN WITNESS WHEREOF, American Re has caused this Certificate of Merger to
be signed by Edward J. Noonan, its President and Chief Executive Officer, and
attested by Robert K. Burgess, its Executive Vice President, General Counsel
and Secretary; and MARC has caused this Certificate of Merger to be signed by
John N. Lombardo, its President and Chief Executive Officer, and attested by
William J. Albinger, Jr., its Senior Vice President, General Counsel and
Secretary, this 1st day of July, 1997.
AMERICAN RE-INSURANCE COMPANY
By:________________________
Name: EDWARD J. NOONAN
Title: President and Chief Executive Officer
ATTEST:
By: ____________________
Name: ROBERT K. BURGESS
Title: Executive Vice President
General Counsel and Secretary
MUNICH AMERICAN REINSURANCE COMPANY
By: _______________________
Name: JOHN N. LOMBARDO
Title: President and Chief Executive Officer
ATTEST:
By: _____________________
Name: WILLIAM J. ALBINGER, JR.
Title: Senior Vice President
General Counsel and Secretary
4
<PAGE>
EXHIBIT A TO CERTIFICATE OF MERGER
AGREEMENT AND PLAN OF MERGER
<PAGE>
EXHIBIT B TO CERTIFICATE OF MERGER
CONTINUING DIRECTORS OF AMERICAN RE-INSURANCE COMPANY
<PAGE>
CONTINUING DIRECTORS OF AMERICAN RE-INSURANCE COMPANY
NAMES ADDRESSES
Edward J. Noonan 555 College Road East, Princeton, N.J. 08543-5241
Mahmoud M. Abdallah 555 College Road East, Princeton, N.J. 08543-5241
Albert J. Beer 555 College Road East, Princeton, N.J. 08543-5241
Robert K. Burgess 555 College Road East, Princeton, N.J. 08543-5241
Edward B. Jobe 555 College Road East, Princeton, N.J. 08543-5241
Kenneth J. LeStrange 555 College Road East, Princeton, N.J. 08543-5241
John N. Lombardo 560 Lexington Avenue, New York, N.Y. 10022-6890
<PAGE>
EXHIBIT 2 TO AGREEMENT AND PLAN OF MERGER
Certificate of Incorporation of the Company
<PAGE>
CERTIFICATE OF INCORPORATION
OF
AMERICAN RE-INSURANCE COMPANY
ARTICLE I
The name of the Company is AMERICAN RE-INSURANCE COMPANY. The Company is
a continuance of the corporate existence, through adoption of the State of
Delaware as the corporate domicile, of American Re-Insurance Company, a
corporation incorporated under the laws of the State of Pennsylvania on March
15, 1917 and reincorporated under the laws of the State of New York on July
25, 1933. Pursuant to Section 4943 of the Delaware Insurance Code, being
Title 18 of the Delaware Code, the date of incorporation of the Company is
March 15, 1917.
ARTICLE II
The registered office of the Company is located at 306 South State
Street, in the City of Dover, in the County of Kent, in the State of
Delaware. The name of its registered agent at such address is the United
States Corporation Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or activity
authorized for an insurance company and a reinsurance company under the
provisions of Sections 903, 904, 905, 906 and 907 of the Delaware Insurance
Code, being Title 18 of the Delaware Code, and to engage in any lawful act or
activity incidental or collateral thereto. Nothing herein contained shall
require the Company to insure every kind of risk which it is authorized to
insure.
ARTICLE IV
The total number of shares which the Company shall have authority to
issue is 6,000,000 shares of capital stock and the par value of each share is
$1.50 per share which shares shall be transferable only upon the books of the
Company in conformity with its By-Laws.
ARTICLE V
The Board of Directors may from time to time make, alter or repeal the
By-Laws of the Company; provided, that any By-Laws made, amended or repealed
by the Board of Directors may be amended or repealed, and any By-Laws may be
made, by the stockholders of the Company.
ARTICLE VI
The Company reserves the right to amend, alter, change or repeal any
provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE VII
The election of Directors need not be by written ballot except to the
extent provided for in the By-Laws.
<PAGE>
EXHIBIT 3 TO AGREEMENT AND PLAN OF MERGER
Shares of ARC Stock in Exchange for MARC Shares
<PAGE>
<TABLE>
<CAPTION>
SHARES OF ARC STOCK IN EXCHANGE FOR MARC SHARES
SELLER(S)/ADDRESS(ES) MARC MARC ARC
COMMON PREFERRED COMMON
SHARES SHARES STOCK
HELD HELD (to be issued)(1)
<S> <C> <C> <C>
MUNCHENER RUCKVERSICHERINGS-GESELLSCHAFT 1,925 19,525 7.13021
AKTIENGESELLSCHAFT IN MUNCHEN
107 Koniginstrasse
80802 Munich, Germany
MUNICH RE U.S. BRANCH 1,575 15,975 5.83381
560 Lexington Avenue
New York, New York 10022-6890
ALLIANZ AKTIENGESELLSCHAFT 2,800 28,400 10.37122
28 Koniginstrasse
80802 Munich, Germany
VICTORIA VERSICHERUNG AG 700 7,100 2.59280
40198 Dusseldorf
Victoriaplatz 1, Germany
TOTALS 7,000 71,000 25.92804
</TABLE>
___________________________
(1) ARC Stock per share valued at $32,783,036.85 based on acquisition cost of
$3,278,303,685.
<PAGE>
EXHIBIT 4.2
DOMESTICATION AGREEMENT
THIS DOMESTICATION AGREEMENT ("this Domestication Agreement"), made
this 24th day of June, 1997 between MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN, a German reinsurance company duly organized and
existing under the laws of Germany with its principal office located at
Koniginstrasse 107, D-80791 Munich, Germany (referred to herein as "Munich Re"),
AMERICAN RE CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (referred to herein as "ARC"), and AMERICAN
RE-INSURANCE COMPANY, a Delaware reinsurance company duly organized and existing
under the laws of the State of Delaware, with its principal office located at
American Re Plaza, 555 College Road East, Princeton, New Jersey 08543-5241
(referred to herein as "Am Re").
W I T N E S S E T H:
WHEREAS, Munich Re has been engaged in the business of transacting
reinsurance and has been licensed to do such business in the State of New York,
and to that end since December 23, 1955 has maintained a United States branch,
which branch entered the United States through the State of New York as its port
of entry, and is currently licensed by the New York Department of Insurance as
the United States branch of an alien insurer pursuant to Section 1106 of the
Insurance Law of the State of New York (sometimes referred
<PAGE>
to herein as the "United States Branch"), having as its United States manager
Munich Management Corporation (referred to herein as the "Manager") and having
its office located at 560 Lexington Avenue, New York, New York; and
WHEREAS, Munich Re also wholly owns ARC, which, in turn, wholly owns
Am Re; and
WHEREAS, Am Re is qualified and licensed in New York to write all the
kinds of insurance for which the United States Branch is qualified and licensed;
and
WHEREAS, in order to consolidate and rationalize the reinsurance
operations of Munich Re in the United States, it is deemed desirable to
domesticate the United States Branch by a transfer at ARC's direction of all of
the United States Branch's business and assets to Am Re and by the assumption by
Am Re of all of the liabilities of the United States Branch; and
WHEREAS, the Superintendent of Insurance of the State of New York
(referred to herein as the "Superintendent") has given his prior written
approval to the execution of this Domestication Agreement between Munich Re and
Am Re; and
WHEREAS, the Insurance Commissioner of the State of Delaware (referred
to herein as the "Commissioner") has given her prior written approval to the
execution of this Domestication Agreement between Munich Re and Am Re;
-2-
<PAGE>
NOW, THEREFORE, the parties hereto covenant and agree as follows:
1. Subject to the final consent and approval of the Superintendent
and of such other governmental regulatory bodies, including, without limitation,
the Commissioner, whose consent and approval may, at the time, be required, and
subject to the terms and conditions of this Domestication Agreement, Munich Re
does hereby agree to assign and transfer at ARC's direction to Am Re all of the
business, assets and liabilities of the United States Branch and Am Re agrees to
accept such business and assets and to assume all of the liabilities of the
United States Branch upon the consummation of this Domestication Agreement as
provided in paragraph 6 hereof.
2. Without limitation on paragraph 1, as of the date of the
consummation of this Domestication Agreement, the business and assets of the
United States Branch shall include, but not be limited to, the following:
(a) all of the underwriting contracts in force, including direct
policies and endorsements and binders in respect thereto,
reinsurance contracts, facultative contracts, retrocession
agreements and all other underwriting contracts of every kind and
description;
(b) all cash, securities, choses in action and other property of
every nature and description, including real property, leasehold
and other interests therein;
(c) securities or other property on deposit with supervisory
insurance officials, other insurance officials and any other
governmental officials;
(d) all monies owing by others, including agents, brokers,
reinsurance intermediaries and other underwriting representatives
and reinsurers;
-3-
<PAGE>
(e) all loans;
(f) all rights, title and interest in all employment contracts and
agency contracts; and
(g) all other assets of every nature and description whatsoever and
wherever located.
3. Without limitation on paragraph 1, as of the date of the
consummation of this Domestication Agreement, the liabilities of the United
States Branch shall include, but not be limited to, the following:
(a) unpaid losses and loss adjustment expenses;
(b) unpaid expenses, including contingent commissions, underwriting
and investment expenses, taxes, licenses and fees and other
similar charges;
(c) unearned premiums;
(d) monies withheld or retained for the account of others;
(e) monies due under reinsurance contracts;
(f) liabilities under leaseholds and other contracts covering real
estate or interests therein;
(g) liabilities under all and any employment contracts, plans for the
welfare or benefit of employees and agency contracts; and
(h) all other liabilities of every nature and description whatsoever.
4. Upon execution of this Domestication Agreement, Munich Re and
Am Re agree and each for itself agrees to execute an Instrument of Transfer and
Assumption, in the form attached hereto and marked Exhibit A.
-4-
<PAGE>
5. In consideration for the assets (net of liabilities) of the
United States Branch, ARC shall issue to Munich Re 23.56908 shares of common
stock, wholly paid up, with a par value of US $0.01 per share, with such new
shares issued by ARC entitling their holders to the same rights and
obligations, as of the date of their issuance, as any shares of common stock
previously issued by ARC. At ARC's direction, Munich Re shall transfer the
assets and liabilities of the United States Branch directly to Am Re. The
parties intend that, for Federal income tax purposes, the foregoing
transactions shall be treated as successive transfers under Section 351 of
the Internal Revenue Code of 1986 from Munich Re to ARC and from ARC to Am Re.
6. This Domestication Agreement shall be consummated and
domestication of the United States Branch shall become effective upon the filing
with the Superintendent of a certified copy of the Instrument of Transfer and
Assumption in the form shown in Exhibit A annexed hereto, or in a form
satisfactory to the Superintendent. The parties agree that, subject to the
requisite approval of the Superintendent and the Commissioner, such filing shall
be deemed made as of July 3, 1997.
7. When the domestication of the United States Branch becomes
effective as provided in paragraph 6 hereof, thereupon, in accordance with
Section 7205 of the Insurance Law of the State of New York, all of the rights,
franchises and interests of the United States Branch in and to every species of
property, real, personal and mixed, and things in action thereunto belonging,
shall be deemed transferred to and vested in Am Re, and simultaneously therewith
Am Re shall be deemed to have assumed all of the liabilities of the
-5-
<PAGE>
United States Branch; all deposits of the United States Branch held by
superintendents, state officers or other state regulatory agencies pursuant to
requirements of state laws shall be deemed to be held as security for the full
performance by Am Re of its assumption as direct liabilities of all of the
liabilities to policyholders and creditors within the United States of the
United States Branch, and such deposits shall be deemed to be admitted assets of
Am Re and shall be reported as such in the annual financial statements and other
reports that Am Re may be required to file; and upon the ultimate release of any
such deposits of the United States Branch held by any superintendent, state
officer or other state regulatory agencies, the securities and cash constituting
such released deposits shall be delivered and paid over to Am Re as the lawful
successor in interest to the United States Branch; and contemporaneously with
the consummation of the domestication of the United States Branch the
Superintendent shall transfer to Am Re or its account the securities deposited
by the United States Branch in compliance with the Insurance Law of the State of
New York, and the Superintendent shall consent that the Trustee of the trusteed
assets deposited by the United States Branch in compliance with the Insurance
Law of the State of New York shall withdraw from the trusteed assets and
transfer and deliver over to Am Re all assets held by such Trustee.
8. Am Re shall be deemed to be a continuance of both itself and of
the United States Branch, and of the business and operations of both, and none
of the rights, licenses, franchises and interests of Am Re and the United States
Branch, or either of them, whether in and to any species of property and the
choses in action thereunto belonging, shall be deemed to revert or be in any way
impaired by such domestication, but shall be deemed to be transferred to and
vested in Am Re.
-6-
<PAGE>
9. After the domestication of the United States Branch becomes
effective as provided in paragraph 6 hereof, Munich Re and ARC agree and each
for itself agrees to make an election pursuant to United States Treasury
Regulation Section 1.884-2T(d).
10. The parties hereto covenant and agree to take such additional
steps, to perform such additional acts and to furnish such additional documents
and other instruments, as may at any time be necessary or appropriate to carry
out the transaction contemplated by this Domestication Agreement. To this end,
Munich Re does hereby irrevocably authorize and empower the Manager at the time
of domestication and Am Re by any of its duly authorized officers, because of
its interest in and to the subject matter hereof, or either of them, to take
such additional steps, to perform such additional acts and to execute such
additional documents and other instruments, and such steps when taken, such acts
when performed and such documents and other instruments when executed shall have
full effect and be as binding as if taken, performed or executed by Am Re.
11. No action or proceeding, pending at the time of the domestication
of the United States Branch to which the United States Branch may be a party,
shall be abated or discontinued by reason of such domestication, but the same
may be prosecuted to final judgment in the same manner as if such domestication
has not taken place and Am Re shall be substituted in place of the United States
Branch by order of the court in which the action or proceeding may be pending.
All liabilities of any nature and description of the United States Branch at the
time of its domestication shall attach to and be assumed by Am Re and may be
-7-
<PAGE>
enforced against Am Re to the same extent as if said liability had been
originally incurred or contracted by Am Re.
12. Attached hereto and marked Exhibit B is a Secretary's Certificate
reflecting the corporate proceedings of Am Re, and attached hereto and marked as
Exhibit C is a Secretary's Certificate reflecting the corporate proceedings of
Munich Re, approving, adopting and authorizing the execution of this
Domestication Agreement.
13. This Domestication Agreement may be revoked and cancelled by
agreement of Munich Re and Am Re at any time prior to its consummation and
filing with the Superintendent as provided for in paragraph 6 hereof.
14. This Domestication Agreement may be executed in one or more
counterparts, any one of which shall be deemed an original, and all such
executed counterparts shall constitute a single agreement, notwithstanding that
each of the parties is not a signatory to the same counterpart.
15. This Domestication Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the respective parties hereto.
-8-
<PAGE>
IN WITNESS WHEREOF, MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN has caused this Domestication Agreement to be
subscribed to by its duly authorized officers in the City of Munich, Germany,
this 24th day of June, 1997, AMERICAN RE CORPORATION has caused this
Domestication Agreement to be subscribed to by its duly authorized officers in
the City of Princeton, New Jersey, this 24th day of June, 1997, and
AMERICAN RE-INSURANCE COMPANY has caused this Domestication Agreement to be
subscribed to by its duly authorized officers in the City of Princeton, New
Jersey, this 24th day of June, 1997.
MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN
By: By:
/s/ Dr. Schinzler /s/ Dr Hasford
- ------------------------- ---------------------------------
Name: Dr. Schinzler Name: Dr. Hasford
Title: President Title: Member of the Board
AMERICAN RE CORPORATION
By: By:
/s/ Edward J. Noonan /s/ Robert K. Burgess
- ------------------------- ---------------------------------
Name: Edward J. Noonan Name: Robert K. Burgess
Title: President and Chief Title: Executive Vice President,
Executive Officer General Counsel and Secretary
AMERICAN RE-INSURANCE COMPANY
By: By:
/s/ Edward J. Noonan /s/ Robert K. Burgess
- ------------------------- ---------------------------------
Name: Edward J. Noonan Name: Robert K. Burgess
Title: Chairman, President Title: Executive Vice President,
and Chief Executive General Counsel and Secretary
Officer
<PAGE>
Exhibit A
Instrument of Transfer
and Assumption
<PAGE>
INSTRUMENT OF TRANSFER AND ASSUMPTION
THIS INSTRUMENT OF TRANSFER AND ASSUMPTION ("this Instrument"), made
this __ day of __________, 1997 between MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN, a German reinsurance company duly organized and
existing under the laws of Germany with its principal office located at
Koniginstrasse 107, D-80791 Munich, Germany (referred to herein as "Munich Re"),
AMERICAN RE CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (referred to herein as "ARC"), and AMERICAN
RE-INSURANCE COMPANY, a Delaware reinsurance company duly organized and existing
under the laws of the State of Delaware, with its principal office located at
American Re Plaza, 555 College Road East, Princeton, New Jersey 08543-5241
(referred to herein as "Am Re").
W I T N E S S E T H:
WHEREAS, Munich Re has been engaged in the business of transacting
reinsurance and has been licensed to do such business in the State of New
York, and to that end since December 23, 1955 has maintained a Un ited States
branch, which branch entered the United States through the State of New York
as its port of entry, and is currently licensed by the New York Department of
Insurance as the United States branch of an alien insurer pursuant to Section
1106 of the Insurance Law of the State of New York (sometimes referred to
herein as the "United States Branch"), having as its United States manager
Munich
<PAGE>
Management Corporation (referred to herein as the "Manager") and having its
office located at 560 Lexington Avenue, New York, New York; and
WHEREAS, Munich Re also wholly owns ARC, which, in turn, wholly owns
Am Re; and
WHEREAS, in order to consolidate and rationalize the reinsurance
operations of Munich Re in the United States, it is deemed desirable to
domesticate the United States Branch by a transfer at ARC's direction of all of
the United States Branch's business and assets to Am Re and by the assumption by
Am Re of all of the liabilities of the United States Branch; and
WHEREAS, the parties hereto have, with the approval of both the
Superintendent of Insurance of the State of New York (referred to herein as the
"Superintendent") and the Commissioner of Insurance of the State of Delaware
(referred to herein as the "Commissioner"), entered into a Domestication
Agreement, executed on the same date as this Instrument (referred to herein as
the "Domestication Agreement");
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree that the United States
Branch shall be domesticated, in accordance with the terms of the Domestication
Agreement, by the transfer of all of the business and assets of the United
States Branch to Am Re and by the assumption by
-2-
<PAGE>
Am Re of all of the liabilities of the United States Branch. The manner in
which such transfer and assumption shall be made effective and the terms of such
transfer and assumption shall be as follows:
1. This Instrument and the domestication of the United States Branch
shall become effective upon the filing of a certified copy of this Instrument
with the Superintendent of Insurance of the State of New York. Subject to the
approval of the Superintendent, the parties agree that such filing shall be
deemed made as of July 3, 1997.
2. By this Instrument the business, assets and liabilities of the
United States Branch are transferred at ARC's direction to Am Re, and Am Re
succeeds thereby to the business, assets and liabilities of the United States
Branch as provided by Article 72 of the Insurance Law of the State of New York,
and the separate existence of the United States Branch shall thereupon cease.
3. Immediately upon this Instrument becoming effective as provided
in paragraph 1 hereof, and subject to paragraph 10 hereafter, all of the rights,
franchises, and interests of the United States Branch in and to every species of
property, real, personal and mixed, and things in action thereunto belonging,
shall be deemed transferred to and vested in Am Re, and simultaneously therewith
Am Re shall be deemed to have assumed all of the liabilities of the United
States Branch, all deposits of the United States Branch held by the
superintendents, state officers or other state regulatory agencies pursuant to
requirements of
-3-
<PAGE>
state laws shall be deemed to be held as security for the full performance by Am
Re of its assumption as direct liabilities of all of the liabilities to
policyholders and creditors within the United States of the United States
Branch, and such deposits shall be deemed to be admitted assets of Am Re and
shall be reported as such in the annual financial statements and other reports
which Am Re may be required to file; and upon the ultimate release of any such
deposits of the United States Branch held by any superintendent, state officer
or other state regulatory agencies, the securities and cash constituting such
released deposits shall be delivered and paid over to Am Re as the lawful
successor in interest to the United States Branch; and contemporaneously with
the consummation of the domestication of the United States Branch the
Superintendent shall transfer to Am Re or its account the securities deposited
by the United States Branch in compliance with the Insurance Law of the State of
New York, and the Superintendent shall consent that the Trustee of the trusteed
assets deposited by the United States Branch in compliance with the Insurance
Law of the State of New York shall withdraw from the trusteed assets and
transfer and deliver over to Am Re all assets held by such Trustee.
4. Am Re shall be deemed to be a continuance of both itself and of
the United States Branch, and of the business and operations of both, and none
of the rights, licenses, franchises and interests of Am Re and the United States
Branch, or either of them, whether in and to any species of property and the
choses in action thereunto belonging, shall be deemed to revert or be in any way
impaired by such domestication, but shall be deemed to be transferred to and
vested in Am Re.
-4-
<PAGE>
5. Without limitation on paragraphs 2 and 3, the business and assets
of the United States Branch, as of the date of the consummation of this
Instrument, shall include, but not be limited to, the following:
(a) all of the underwriting contracts in force, including direct
policies and endorsements and binders in respect thereto,
reinsurance contracts, facultative contracts, retrocession
agreements and all other underwriting contracts of every kind and
description;
(b) all cash, securities, choses in action and other property of
every nature and description, including real property, leasehold
and other interests therein;
(c) securities or other property on deposit with supervisory
insurance officials, other insurance officials and any other
governmental officials;
(d) all monies owing by others, including agents, brokers,
reinsurance intermediaries and other underwriting representatives
and reinsurers;
(e) all loans;
(f) all rights, title and interest in all employment contracts and
agency contracts; and
(g) all other assets of every nature and description whatsoever and
wherever located.
6. Without limitation on paragraphs 2 and 3, the liabilities of the
United States Branch, as of the date of the consummation of this Instrument,
shall include, but not be limited to, the following:
(a) unpaid losses and loss adjustment expenses;
(b) unpaid expenses, including contingent commissions, underwriting
and investment expenses, taxes, licenses and fees and other
similar charges;
(c) unearned premiums;
-5-
<PAGE>
(d) monies withheld or retained for the account of others;
(e) monies due under reinsurance contracts;
(f) liabilities under leaseholds and other contracts covering real
estate or interests therein;
(g) liabilities under all and any employment contracts, plans for the
welfare or benefit of employees and agency contracts; and
(h) all other liabilities of every nature and description whatsoever.
7. In consideration for the assets (net of liabilities) of the
United States Branch, ARC shall issue to Munich Re 23.56908 shares of common
stock, wholly paid up, with a par value of US $0.01 per share, with such new
shares issued by ARC entitling their holders to the same rights and
obligations, as of the date of their issuance, as any shares of common stock
previously issued by ARC. At ARC's direction, Munich Re shall transfer the
assets and liabilities of the United States Branch directly to Am Re. The
parties intend that, for Federal income tax purposes, the foregoing
transactions shall be treated as successive transfers under Section 351 of
the Internal Revenue Code of 1986 from Munich Re to ARC and from ARC to Am Re.
8. No action or proceeding, pending at the time of the domestication
of the United States Branch to which the United States Branch may be a party,
shall be abated or discontinued by reason of such domestication, but the same
may be prosecuted to final judgment in the same manner as if such domestication
had not taken place and Am Re shall be substituted in place of the United States
Branch by order of the court in which the action or
-6-
<PAGE>
proceeding may be pending. All liabilities of any nature and description of the
United States Branch at the time of its domestication shall attach to and be
assumed by Am Re and may be enforced against Am Re to the same extent as if said
liability had been originally incurred or contracted by Am Re.
9. The parties hereto covenant and agree to take such additional
steps, to perform such additional acts and to furnish such additional documents
and other instruments, as may at any time be necessary or appropriate to carry
out the transaction contemplated by this Instrument. To this end, Munich Re
does hereby irrevocably authorize and empower the Manager at the time of
domestication and Am Re by any of its duly authorized officers, because of its
interest in and to the subject matter hereof, or either of them, to take such
additional steps, to perform such additional acts and to execute such additional
documents and other instruments, and such steps when taken, such acts when
performed and such documents and other instruments when executed shall have full
effect and be binding as if taken, performed or executed by Munich Re.
10. The domestication is subject to: (1) the approval, of Munich Re,
of the Domestication Agreement; (2) the approval, by the board of directors of
Am Re, of the Domestication Agreement; and (3) the final approval of both the
Superintendent and the Commissioner of the Domestication Agreement and this
Instrument and the terms and conditions of each.
-7-
<PAGE>
11. This Instrument may be executed in counterparts, any one of which
shall be deemed an original, and all of which counterparts shall constitute a
single agreement, notwithstanding that each of the parties is not a signatory to
the same counterpart.
12. This Instrument shall inure to the benefit of, and be binding
upon, the successors and assigns of the respective parties hereto.
-8-
<PAGE>
IN WITNESS WHEREOF, MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN has caused this Instrument to be subscribed to by
its duly authorized officers in the City of Munich, Germany, this ____ day of
__________, 1997, AMERICAN RE CORPORATION has caused this Instrument to be
subscribed to by its duly authorized officers in the City of Princeton, New
Jersey, this ____ day of __________, 1997, and AMERICAN RE-INSURANCE COMPANY has
caused this Instrument to be subscribed to by its duly authorized officers in
the City of Princeton, New Jersey, this ____ day of __________, 1997.
MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN
By: By:
_____________________________ _________________________________
Name: Name:
Title: Title:
AMERICAN RE CORPORATION
By: By:
_____________________________ _________________________________
Name: Name:
Title: Title:
AMERICAN RE-INSURANCE COMPANY
By: By:
_____________________________ _________________________________
Name: Name:
Title: Title:
<PAGE>
Exhibit B
Secretary's Certificate of
Am Re
<PAGE>
AMERICAN RE-INSURANCE COMPANY
Secretary's Certificate
I, the undersigned, Robert K. Burgess, Executive Vice President, General
Counsel and Secretary of American Re-Insurance Company, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation") do
hereby certify:
1. That the original resolutions of which the following are copies were duly
adopted by unanimous written consent of the Board of Directors of the
Corporation dated as of June 16, 1997 and recorded with the minutes of meetings
of the Board of Directors of said Corporation, such resolutions have not since
been revoked, amended or modified:
APPROVAL OF MERGER WITH MUNICH AMERICAN REINSURANCE COMPANY
WHEREAS, the Board of Directors of American Re-Insurance Company, a Delaware
corporation (the "Corporation"), has been presented with an Agreement and Plan
of Merger (together with exhibits, the "Merger Agreement"), among the
Corporation, American Re Corporation, a Delaware corporation ("ARC"), Munich
American Reinsurance Company, a New York corporation ("MARC"), and each of
Munchener Ruckversicherungs Gesellschaft Aktiengesellschaft in Munchen, a
limited liability company organized under the laws of Germany ("Munich Re"),
Munich Re U.S. Branch, Allianz Aktiengesellschaft, a company organized under the
laws of Germany, and VICTORIA Versicherung AG, a company organized under the
laws of Germany (each as shareholders of MARC, and collectively the "Sellers"),
and a Certificate of Merger, whereby MARC will be merged with and into the
Corporation and the Corporation will be the surviving entity (the Merger"); and
WHEREAS, the Board of Directors believes that the Merger Agreement is fair to,
advisable and in the best interests of the Corporation and its stockholders;
NOW, THEREFORE, BE IT RESOLVED, that this Board deems the Merger of MARC with
and into the Corporation, pursuant to the Merger Agreement and the Certificate
of Merger, in the form attached hereto as Exhibit A, to be fair to, advisable
and in the best interests of the Corporation and its stockholders and as such,
is hereby approved, subject to stockholder approval and the approval of the
applicable regulatory authorities; and
FURTHER RESOLVED, that the form, terms, conditions and considerations set forth
in the Merger Agreement be, and they hereby are, approved and that the
President, any Executive Vice President or any Senior Vice President and the
Secretary or any Assistant Secretary of the Corporation be, and each of them
hereby is, authorized and directed to execute and deliver on behalf of the
Corporation, the Merger Agreement in the form presented to this Board of
Directors and with such changes therein and additions thereto as the officer or
officers executing the same on behalf of the Corporation shall determine to be
appropriate, their execution thereof to be conclusive evidence of such approval
and with such changes, revisions and supplements, if any, as the Superintendent
of Insurance of the State of New York and/or the Commissioner of Insurance of
the State of Delaware may require, provided that such changes will not
materially affect the proposed Merger Agreement; and
FURTHER RESOLVED, that the acts of the foregoing officers of the Corporation in
negotiating and preparing for the execution and delivery of the Merger Agreement
and the Certificate of Merger and all matters related or incident thereto be,
and the same hereby are, in all respects ratified, confirmed and approved; and
FURTHER RESOLVED, that the Merger Agreement and the Certificate of Merger be
submitted to the stockholder of the Corporation for the purpose of considering
the adoption, authorization and approval of
<PAGE>
same, which may be accomplished by such stockholder acting without a meeting on
unanimous written consent; and
FURTHER RESOLVED, that this Board hereby recommends that the stockholder of this
Corporation approve the Merger Agreement and the Certificate of Merger proposed
in the first WHEREAS clause above; and
GENERAL AUTHORIZATIONS
FURTHER RESOLVED, that the President, any Executive Vice President or any Senior
Vice President of the Corporation be, and they hereby are, authorized to file
with the New York Superintendent of Insurance, the Delaware Insurance
Commissioner, the secretaries of state in Delaware and New York and with the
insurance executives, secretaries of state or other officials or agents of every
state, county, province or other governmental unit or agency which such officers
deem, with advice of counsel, necessary or desirable, the Merger Agreement, the
Certificate of Merger, and such other documents, notices, applications,
affidavits, or other like forms and to appear on behalf of this Corporation (or
authorize such appearance through agents or counsel) in any judicial or
regulatory hearing or other proceedings, as may be necessary or desirable, in
the opinion of such officers, with advice of counsel, in order to obtain
approval of the Merger in the manner proposed in the Merger Agreement and to
assure that the Corporation's franchises and licenses to do business and its
treaties and other contractual arrangements will be maintained in the name of
the Corporation after the effectiveness of the Merger; and
FURTHER RESOLVED, that the appropriate officers of this Corporation be, and they
hereby are, authorized to give such notice of the authorizations, stockholder
approval, effectiveness or delay or abandonment of the proposed Merger, as they
deem necessary or appropriate, with advice of counsel, to the public generally
or any creditors, customers, suppliers or other class or classes of persons
doing business with the Corporation; and
FURTHER RESOLVED, that the Corporation is hereby authorized to pay all necessary
and reasonable fees and expenses incurred in connection with the Merger, and the
appropriate officers of the Corporation are hereby severally authorized, in the
name and on behalf of the Corporation, to make all payments as they, or any of
them, shall determine to be appropriate, such payment to be conclusive evidence
of their determination; and
FURTHER RESOLVED, that the officers of the Corporation are hereby authorized to
take such further actions as such officers, with advice of counsel, may deem
necessary or desirable in order to accomplish and to carry into effect all
purposes and intents of the foregoing resolutions; and
FURTHER RESOLVED, that the Secretary or any Assistant Secretary of this
Corporation is hereby authorized to certify and deliver to any state, state
agency, or governmental agency to whom such certification and delivery may be
deemed necessary and desirable in the opinion of such Secretary or Assistant
Secretary, a true copy of the foregoing resolutions and such state, state agency
or governmental agency may rely upon same until receipt by it of written notice
of any change or revocation thereof; and
FURTHER RESOLVED, that a copy of said Merger Agreement and Certificate of Merger
be inserted in the minute book following these resolutions.
APPROVAL OF THE DOMESTICATION OF THE MUNICH RE BRANCH
WHEREAS, the Board of Directors of the Corporation has been presented with a
Domestication Agreement (the "Domestication Agreement"), among Munich Re, ARC
and the Corporation, whereby Munich Re agrees to assign all of the business,
assets and liabilities of its United States Branch to the Corporation and the
Corporation agrees to accept such business and assets and to assume all of the
liabilities of Munich Re's Branch (the "Domestication"); and
<PAGE>
WHEREAS, the Board of Directors believes that the Domestication Agreement is
fair to, advisable and in the best interests of the Corporation;
NOW, THEREFORE, BE IT RESOLVED, that this Board deems the Domestication,
pursuant to the Domestication Agreement, as attached hereto as Exhibit B, to be
fair to, advisable and in the best interests of the Corporation; and
FURTHER RESOLVED, that the form, terms, conditions and considerations set forth
in the Domestication Agreement be, and they hereby are, approved and that the
President, any Executive Vice President, or any Senior Vice President and the
Secretary or any Assistant Secretary of the Corporation be, and each of them
hereby is, authorized and directed to execute and deliver on behalf of the
Corporation, the Domestication Agreement in the form presented to this Board of
Directors with such changes therein and additions thereto as the officer or
officers executing the same on behalf of the Corporation shall determine to be
appropriate, their execution thereof to be conclusive evidence of such approval
and with such changes, revisions and supplements, if any, as the Superintendent
of Insurance of the State of New York and/or the Commissioner of Insurance of
the State of Delaware may require, provided that such changes will not
materially affect the proposed Domestication Agreement; and
FURTHER RESOLVED, that the acts of the foregoing officers of the Corporation in
negotiating and preparing for the execution and delivery of the Domestication
Agreement and all matters related or incident thereto be, and the same hereby
are, in all respects ratified, confirmed and approved; and
GENERAL AUTHORIZATIONS
FURTHER RESOLVED, that the President, any Executive Vice President or any Senior
Vice President of the Corporation be, and they hereby are, authorized to file
with the New York Superintendent of Insurance, the Delaware Insurance
Commissioner, the secretaries of state in Delaware and New York and with the
insurance executives, secretaries of state or other officials or agents of every
state, county, province or other governmental unit or agency which such officers
deem, with advice of counsel, necessary or desirable, the Domestication
Agreement and such other documents, notices, applications, affidavits, or other
like forms and to appear on behalf of this Corporation (or authorize such
appearance through agents or counsel) in any judicial or regulatory hearing or
other proceedings, as may be necessary or desirable, in the opinion of such
officers, with advice of counsel, in order to obtain approval of the
Domestication in the manner proposed in the Domestication Agreement, and to
assure that the Corporation's franchises and licenses to do business and its
treaties and other contractual arrangements will be maintained in the name of
the Corporation after the effectiveness of the Domestication; and
FURTHER RESOLVED, that the appropriate officers of the Corporation be, and they
hereby are, authorized to give such notice of the authorizations, stockholder
approval, effectiveness or delay or abandonment of the proposed Domestication,
as they deem necessary or appropriate, with advice of counsel, to the public
generally or any creditors, customers, suppliers or other class or classes of
persons doing business with the Corporation; and
FURTHER RESOLVED, that the Corporation is hereby authorized to pay all necessary
and reasonable fees and expenses incurred in connection with the Domestication,
and the appropriate officers of the Corporation are hereby severally authorized,
in the name and on behalf of the Corporation, to make all payments as they, or
any of them, shall determine to be appropriate, such payment to be conclusive
evidence of their determination; and
FURTHER RESOLVED, that the officers of the Corporation are hereby authorized to
take such further actions as such officers, with advice of counsel, may deem
necessary or desirable in order to accomplish and to carry into effect all
purposes and intents of the foregoing resolutions.
<PAGE>
2. That the undersigned has compared the foregoing copy thereof with said
original resolutions as so recorded, and that the same are true and correct
copies of said original resolutions as so recorded and the whole thereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day of
June, 1997.
AMERICAN RE-INSURANCE COMPANY
By:_________________________________
[SEAL] Robert K. Burgess
Executive Vice President, General Counsel
and Secretary
<PAGE>
Exhibit C
Secretary's Certificate of
Munich Re
<PAGE>
MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN
SECRETARY'S CERTIFICATE
I, Dr. Udo Knoke, hereby certify that I am the Corporate Secretary of
Munchener Ruckversicherungs-Gesellschaft, Aktiengesellschaft in Munchen
("Munich Re") and, in such capacity I am responsible for the Company's legal
affairs. I hereby certify that
- - the proposed Domestication Agreement and Instrument of Transfer and
Assumption have been duly and validly authorized by all requisite
corporate action and no other corporate proceedings on the part of
Munich Re are necessary to authorize the foregoing.
- - Munich Re has no legal obligation to get approval by a German Authority
for this Domestication Agreement and Instrument of Transfer and
Assumption.
- - this Domestication Agreement and Instrument of Transfer and Assumption,
in final form with such changes, revisions and supplements, if any, as
the Superintendant of Insurance of the State of New York, and for the
Commissioner of Insurance of the State of Delaware may require,
provided such changes are not material, will be executed by Munich Re.
Certified a true copy this ____ day of _____, one thousand nine hundred and
ninety-seven.
MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT
AKTIENGESELLSCHAFT IN MUNCHEN
BY: _________________________
Name: Dr. Udo Knoke
Title: CORPORATE SECRETARY
<PAGE>
EXHIBIT 99
NEWSrelease
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[Logo] AMERICAN RE
American Re Plaza 555 College Road East
Princeton, NJ 08543-5241
From Immediate Release Contact: Thomas H. Walker, Jr.
July 7, 1997 (609) 243-4679
AMERICAN RE AND MUNICH RE COMPLETE MERGER OF MUNICH RE'S U.S.
OPERATIONS INTO AMERICAN RE-INSURANCE COMPANY
PRINCETON, NJ -- American Re Corporation ("American Re") and Munich Reinsurance
Company of Munich, Germany ("Munich Re") reported today that they have completed
the merger of Munich American Reinsurance Company ("MARC") and Munich Re's
existing U.S. branch into American Re-Insurance Company, the principal
reinsurance subsidiary of American Re. As a result of these transactions,
American Re-Insurance Company had statutory admitted assets of nearly $9 billion
and statutory surplus of more than $2 billion on a "pro forma" combined basis as
of March 31, 1997, and in 1996 had more than $3 billion in statutory gross
written premiums.
Edward J. Noonan, President and Chief Executive Officer of American Re, said,
"Since January, we have been coordinating the operations of American Re, MARC
and Munich Re's U.S. branch, providing clients of each unit with essentially the
same access to the combined product and service capabilities of the Munich Re
Group. The transactions announced today simplify the legal structure supporting
what is now a single, unified U.S. operation and provide all of our clients the
combined financial resources of a single legal entity, American Re-Insurance
Company, which carries the highest claims-paying ability and financial strength
ratings available from Standard & Poor's and Moody's, respectively."
Dr. Hans-Jurgen Schinzler, Chairman of the Board of Management of Munich Re,
added, "We are happy that the exceptional efforts of all involved over the past
seven months in integrating American Re, MARC and Munich Re's U.S. branch
operationally and legally have been concluded so
<PAGE>
successfully. We look forward to an even stronger American Re's continuing
leadership in the U.S. reinsurance market."
Prior to the merger, MARC was owned 50% by Munich Re and 50% by other
stockholders. As a result of the merger, the interests of such other
stockholders have been converted into ownership of a minority interest in
American Re, collectively representing less than 9% of American Re's outstanding
common stock. Munich Re continues to own more than 91% of the common stock of
American Re.
American Re is a direct writer of treaty and facultative reinsurance and
provider of related services. Based in Princeton, New Jersey, it is the second
largest writer of property-casualty reinsurance in the United States, and is a
member of the Munich Re Group. The Munich Re Group is the leading reinsurance
group in the world. It is headed by Munich Reinsurance Company of Munich,
Germany, and includes reinsurance subsidiaries, branches, service companies and
liaison offices in more than 60 locations worldwide, serving insurers in more
than 150 countries.
[end]
