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Exhibit A-3
AGREEMENT OF MERGER
AGREEMENT OF MERGER dated September 18, 1968, by and between WEST OHIO
GAS COMPANY, an Ohio corporation ("West Ohio"), and 0HI0 NATURAL GAS
COMPANY, an Ohio corporation ("Ohio Natural").
W I T N E S S E T H :
WHEREAS, West Ohio is authorized to have outstanding 2,000,000 shares
of Common Stock of the par value of $5.00 each ("West Ohio Stock"), of
which, at the date hereof, (i) 997,683 shares are presently issued and
outstanding, (ii) 9,500 shares have been authorized to be issued upon the
exercise of certain outstanding options under West Ohio's Qualified Stock
Option Plan, and (iii) no shares are held in its treasury. The stated
capital of West Ohio is $4,988,415.00; and
WHEREAS, Ohio Natural is authorized to have outstanding 500 shares of
Common Stock of the par value of $1.00 per share ("Ohio Natural Stock"), of
which, at the date hereof, all shares are subscribed for. The stated
capital of Ohio Natural is $500.00; and
WHEREAS, the Boards of Directors of West Ohio and Ohio Natural (such
corporations being hereinafter sometimes called the "Constituent
Corporations") deem it advisable for the mutual benefit of the Constituent
Corporations and their respective shareholders and in the public interest
that Ohio Natural be merged into West Ohio upon the terms and conditions
hereinafter set forth, and such Boards of Directors have approved this
Agreement of Merger;
Now, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and in accordance with the laws of Ohio, West
Ohio and Ohio Natural hereby agree that, subject to the conditions
hereinafter set forth, Ohio Natural shall be merged into West Ohio and West
Ohio shall be the surviving corporation, and that the terms and conditions
of such merger shall be as follows:
FIRST: The name of the surviving corporation shall be West Ohio Gas
Company ("Corporation").
SECOND: The place in Ohio where the principal office of the
Corporation is to be located is Xxxx, Xxxxx County.
THIRD: The purposes for which the Corporation is formed are:
To produce, gather, manufacture, process, store, distribute,
transport, buy, use, sell, or dispose of natural, liquified petroleum,
artificial and manufactured gas, and all forms, components and by-products
thereof for light, heat, cooling, power and any other purposes and
processes including the generation or production of any other forms of
energy.
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To construct, purchase or in any manner acquire and to lay, install,
maintain, operate, remove, mortgage, lease, sell or in any manner dispose
of lands, buildings, plants, works, pipe lines, mains, appliances,
facilities, equipment and apparatus of any nature necessary for or useful
in the production, gathering, manufacture, processing, storage,
distribution, transportation, purchase, use, sale or other disposition of
natural, liquified petroleum, artificial and manufactured gas and all
forms, components and by-products thereof.
To locate, buy, own, sell and lease gas, oil and other mineral lands
under the laws of the United States or any state thereof; to drill and
operate xxxxx for gas, oil, water and other mineral substances; to own,
operate, lease, buy and sell lands, buildings, facilities, equipment and
apparatus in connection therewith or necessary therefor; and to produce,
process, refine, transport, store, distribute and sell all products and by-
products thereof.
To purchase, or otherwise acquire, own, hold, sell, lease, pledge,
mortgage, assign or otherwise dispose of real and personal property, and
the stocks, bonds and securities of other corporations, foreign and
domestic, except as prohibited by law.
To engage in and to do any lawful act concerning any or all lawful
business for which corporations may be incorporated under the 0hio Revised
Code.
FOURTH: The number of shares that the Corporation is authorized to
have outstanding is 2,000,000 shares of Common Stock of the par value of
$5.00 each ("Common Stock").
FIFTH: The aggregate amount of stated capital of the Common Stock at
the Effective Date of the Merger shall be the sum of the aggregate amounts
of stated capital of the Constituent Corporations at said date.
SIXTH: The assets and liabilities of the Constituent Corporations
shall be recorded on the books of the Corporation at the amounts at which
they are stated on the books of the Constituent Corporations at the time of
the Effective Date of the Merger. The excess of the assets of the
Corporation, taken at their fair value to the Corporation, over the sum of
its liabilities, including liabilities derived from the Constituent
Corporations or resulting from the merger, and stated capital, is at least
equal to the combined earned surplus of the Constituent Corporations. The
earned surplus (income retained in the business) of the Constituent
Corporations shall constitute earned surplus of the Corporation. The
foregoing accounting entries shall be subject to such adjustments as may be
made in accordance with sound accounting practice.
SEVENTH: The names and addresses of the first directors of the
Corporation, who shall hold office until their respective successors have
been elected and qualified, are as follows:
NAME ADDRESS
Xxx X. Xxxx Lima, Ohio
Xxxx 0. Xxxxxx Lima, Ohio
Xxxxxx X. Xxxxxxx Lima, Ohio
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NAME ADDRESS
Xxxxxx X. Xxxxxx, Xx. Lima, Ohio
X. X. Xxxxxxxxxx Cleveland, Ohio
Xxxxxxx X. Xxxxxx Cleveland, Ohio
Xxxxxx X. Xxx Cleveland, Ohio
The names, titles, and addresses of the first officers of the Corporation,
who shall hold office until their respective successors have been elected
and qualified, are as follows:
NAME TITLE ADDRESS
X. X. Xxxxxxxxxx Chairman of the Board Cleveland, Ohio
Xxx X. Xxxx President & General Manager Lima, Ohio
Xxxxxx X. Xxxxxx, Xx. Vice President & Treasurer Lima, Ohio
Xxxxxx X. Xxxxxxx Secretary Lima, Ohio
Xxx Xxxxxxx Assistant Treasurer Lima, Ohio
X. X. Xxxxxxxxxx Assistant Treasurer Lima, Ohio
If, on the Effective Date of the Merger, a vacancy shall exist in the
number of directors or officers of the Corporation by reason of the death
or inability to act of any of the above-named persons or their failure to
accept a position as director or officer of the Corporation, such vacancy
may be filled in the manner provided in the Regulations of the Corporation.
EIGHTH: All meetings of shareholders and directors may be held either
within or without the State of Ohio, and the Corporation may have one or
more offices and may keep the books of the Corporation (except such books
as are required by law to be kept at the office of the Corporation in the
State of Ohio) outside of the State of Ohio, and at any such place or
places, as may from time to time be designated by the Board of Directors.
NINTH: Xxx X. Xxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxx, Xxxx, 00000, hereby
is appointed as the person upon whom any process, notice, or demand against
either of the Constituent Corporations or the Corporation may be served.
TENTH: The terms of the merger, the mode of carrying the same into
effect, and the manner and basis of making distribution to the shareholders
of the Constituent Corporations in extinguishment of and in substitution
for shares of the Constituent Corporations, shall be as follows:
(a) The shares of Ohio Natural Common Stock issued and outstanding on the
Effective Date of the Merger shall be converted into and shall be that
number of new shares of Common Stock of the Corporation which is equal
in amount to the number of West Ohio shares issued and outstanding
immediately prior to the Effective Date of the Merger.
(b) Each share of West Ohio Stock issued and outstanding immediately prior
to the Effective Date of the Merger (excluding shares held by those
shareholders of West Ohio who have perfected their rights as
dissenting shareholders under Section 1701.85 of the Ohio Revised
Code) shall be converted into and shall be .80 of a share of the $8.00
par value Capital Stock of Consolidated Natural Gas Company, a
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Delaware corporation ("Consolidated"), which will, on the Effective
Date of the Merger, be deposited by Ohio Natural with the Exchange
Agent (as hereinafter defined) for distribution to shareholders of
West Ohio pursuant to the provisions of subsection (d) of this Article
Tenth.
(c) After the Effective Date of the Merger, each optionee of an
outstanding employee stock option to purchase West Ohio Stock
heretofore granted by West Ohio under its Qualified Stock Option Plan,
a schedule of such outstanding options having heretofore been
furnished Ohio Natural, shall be entitled upon exercise of such option
to receive, in lieu of shares of West Ohio Stock, that number of
shares of
Consolidated Capital Stock ("Consolidated Stock") that is equal to .80
times-the number of shares of West Ohio Stock covered by the option
immediately prior to the Effective Date of the Merger (disregarding
any fractional shares resulting from such multiplication) at a
purchase price for each share of Consolidated Stock equal to 125% of
$15.3125, the purchase price of each share of West Ohio Stock under
said stock option agreement (counting as one whole cent any fraction
of one cent resulting from such multiplication). Each such option
shall otherwise be on the same terms and conditions and have the same
provisions as shall be contained therein immediately prior to the
Effective Date of the Merger.
(d) After the Effective Date of the Merger, each holder of an outstanding
certificate or certificates which prior thereto represented shares of
West Ohio Stock shall surrender the same to First National Bank &
Trust Company of Lima, 000 Xxxx Xxxxxx Xxxxxx, Xxxx, Xxxx, 00000,
exchange agent for all such holders ("Exchange Agent"), and such
holder shall be entitled upon such surrender to receive in exchange
therefor a certificate or certificates representing the number of
whole shares of Consolidated Stock into which the shares theretofore
represented by the certificate or certificates so surrendered shall
have been converted as aforesaid. Adoption of this Agreement of
Merger by the shareholders of the Constituent Corporations shall
constitute ratification of the appointment of such Exchange Agent.
Until so surrendered, each such outstanding certificate which prior to
the Effective Date of the Merger represented shares of West Ohio Stock
shall be deemed, subject to the further provisions of this Article
Tenth, solely to evidence the ownership of the number of shares of
Consolidated Stock into which such West Ohio Stock has been so
converted. No cash or stock dividend payable, and no certificates
representing split shares deliverable in the event any such split
shall be declared, to holders of Consolidated Stock of record as of
any date subsequent to the Effective Date of the Merger shall be paid
or delivered to the holder of any certificate which prior to such
Effective Date represented West Ohio Stock unless and until such
certificate is surrendered as hereinabove provided, but upon such
surrender there shall be paid or delivered to such holder of record of
the certificate for Consolidated Stock issued in exchange therefor,
the amount of any such cash dividend, or the certificates for the
whole number of shares of Consolidated Stock resulting from any such
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stock dividends or splits (without interest thereon) which shall have
theretofore become payable or deliverable with respect to such
Consolidated Stock.
(e) No certificates or scrip representing fractional shares of
Consolidated Stock shall be issued upon the surrender for exchange of
certificates for shares of West Ohio Stock converted into shares of
Consolidated Stock pursuant to this Article Tenth, and no Consolidated
dividend or stock split shall relate to any fractional share and such
fractional share interests will not entitle the owner thereof to vote
or to any rights of a shareholder. In lieu of any such fractional
share, the Corporation shall afford the holder of each such West Ohio
Stock certificate the Opportunity, through the Exchange Agent, on or
before the forty-fifth day following the Effective Date of the Merger,
or on or before such later date (but in any event not later than the
ninetieth day following such Effective Date) as the Corporation may
determine, either to consolidate his fractional interest, if any, into
one full share of Consolidated Stock by purchasing the additional
fractional interest required for such consolidation or to sell such
fractional interest and obtain the net proceeds thereof, subject to
the further provisions of this section (e), following the surrender of
his West Ohio Stock certificate for exchange as aforesaid; provided,
however, that in no event shall any holder of a fractional interest
have any right to any settlement in respect thereof prior to the
twentieth day following the Effective Date of the Merger. Any
fractional interests with respect to which instructions shall not have
been so received by the Exchange Agent within the prescribed period
shall be sold by the Exchange Agent, and the holder of any such
fractional interest shall thereafter be entitled to receive the net
proceeds of the sale thereof upon the surrender of his West Ohio Stock
certificate for exchange as aforesaid to and including the sixth
anniversary of the Effective Date of the Merger. Immediately after
such anniversary the Exchange Agent shall deliver to the Corporation
all unclaimed proceeds from sales of fractional interests as
hereinabove provided, and all such proceeds shall be retained by and
belong absolutely to the Corporation free and clear of any claims
whatsoever. The Exchange Agent may offset buy and sell orders, and
orders not offset will be executed on the New York Stock Exchange or
otherwise, as determined by the Exchange Agent in its discretion,
using such factors as it may consider relevant.
(f) All shares of Consolidated Stock into which shares of West Ohio Stock
shall have been converted pursuant to this Article Tenth shall be
deemed to have been issued in full satisfaction of all rights
pertaining to such converted shares, subject, however, to the
Corporation's obligation to pay such dividends, if any, as may have
been declared by West Ohio on such shares of West Ohio Stock and as
remained unpaid at the Effective Date of the Merger.
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(g) The number of shares of Consolidated Stock to which shareholders and
optionees of West Ohio Stock are otherwise entitled under this Article
Tenth (and, as to optionees, the purchase price per share upon
exercise of their options) shall be appropriately adjusted for any
stock dividends on Consolidated Stock, and for any stock splits or
combinations of Consolidated Stock, payable to or affecting holders of
record of Consolidated Stock at a date subsequent to the date of this
agreement and prior to the Effective Date of the Merger.
(h) Upon the Effective Date of the Merger, the holders of certificates for
West Ohio Stock outstanding on said Effective Date shall cease to have
any rights with respect to such stock (except such rights, if any, as
they may have as dissenting shareholders) and (except as aforesaid)
their sole rights shall be with respect to the Consolidated Stock into
which their shares of West Ohio Stock have been converted by the
Merger.
ELEVENTH: The Regulations of West Ohio shall be the Regulations of
the Corporation.
TWELFTH: The term "Effective Date of the Merger" as used herein shall
be the "Closing Date" as defined in the Agreement and Plan of
Reorganization entered into by the parties hereto and of even date with
this Agreement of Merger. A Certificate of Adoption of Agreement of Merger
shall duly filed in the office of the Secretary of State of Ohio either on
or immediately following such date. Each of the Constituent Corporations
hereby agrees to do promptly all such acts and to take promptly all such
measures as may be appropriate to enable it to perform as early as
practicable the covenants and agreements herein provided to be performed by
it.
THIRTEENTH: This Agreement of Merger may be terminated and the merger
abandoned prior to the Effective Date of the Merger, either by mutual
consent of the Boards of Directors of both Constituent Corporations or by
the Board of Directors of either of the Constituent Corporations if the
Agreement and Plan of Reorganization among Consolidated, Ohio Natural, and
West Ohio dated of even date herewith shall have been terminated as therein
provided. In the event of termination by the Board of Directors of either
or both of the Constituent Corporations as provided in this Article
Thirteenth, notice shall be given to the other Constituent Corporation and
the Board or Boards of Directors so terminating may direct its or their
officers not to file the Certificate of Adoption of Agreement of Merger as
required by the laws of Ohio notwithstanding favorable action by the
shareholders of the respective Constituent Corporations.
FOURTEENTH: Any of the terms or conditions of this Agreement of
Merger may be waived at any time by the one of the Constituent Corporations
which is, or the shareholders of which are, entitled to the benefit thereof
by action taken by the Board of Directors of such party, or may be amended
or modified in whole or in any part at any time prior to the vote of the
shareholders of the Constituent Corporations hereon by an agreement in
writing executed in the same manner as this Agreement of Merger after
authorization to do so by the Boards of Directors of the Constituent
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Corporations; provided, however, that such actions shall be taken only if,
in the judgment of the Board of Directors taking the action, such waiver or
such amendment or modification will not have a materially adverse effect on
the benefits intended under this Agreement of Merger to the shareholders of
its corporation.
FIFTEENTH: This Agreement of Merger may be executed in any number of
counterparts, each of which shall be an original, but such counterparts
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the Constituent Corporations has caused
this Agreement of Merger to be duly executed as of the day and year first
above written.
WEST OHIO GAS COMPANY
By /s/ Xxx X. Xxxx
President
/s/ X. X. Xxxxxxx
Secretary
OHIO NATURAL GAS COMPANY
By /s/ X. X. Xxxxxx
President
/s/ Xxxxxx X. Xxxxxxxx, Xx.
Secretary
