AGREEMENT AND PLAN OF MERGER
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated January 30, 2007 (this “Agreement”), is between
EnergySouth, Inc., an Alabama corporation (“EnergySouth Alabama”), and EnergySouth, Inc., a
Delaware corporation (“EnergySouth Delaware”) and a wholly owned subsidiary of EnergySouth Alabama.
EnergySouth Alabama and EnergySouth Delaware are sometimes hereinafter collectively referred to as
the “Constituent Corporations.”
RECITALS
WHEREAS, EnergySouth Alabama is a corporation organized and existing under the laws of the
State of Alabama, and, as of the date hereof, has 7,959,302 shares of common stock, par value $0.01
per share, issued and outstanding (“EnergySouth Alabama Common Stock”).
WHEREAS, EnergySouth Delaware is a corporation organized and existing under the laws of the
State of Delaware, and, as of the date hereof, has 1,000 shares of common stock, par value $0.01
per share, issued and outstanding (“EnergySouth Delaware Common Stock”), all of which are held by
EnergySouth Alabama.
WHEREAS, the respective Boards of Directors of EnergySouth Alabama and EnergySouth Delaware
have adopted and approved, as the case may be, this Agreement, which is the plan of merger for
purposes of the Alabama Business Corporation Act and the agreement of merger for purposes of the
Delaware General Corporation Law, and the transactions contemplated by this Agreement, including
the Merger (as hereinafter defined).
WHEREAS, the Board of Directors of EnergySouth Alabama has determined that for the purpose of
effecting the reincorporation of EnergySouth Alabama in the State of Delaware, this Agreement and
the transactions contemplated by this Agreement, including the Merger, are advisable and in the
best interests of EnergySouth Alabama and its shareholders, and the Board of Directors of
EnergySouth Delaware has determined that this Agreement and the transactions contemplated by this
Agreement, including the Merger are advisable and in the best interests of EnergySouth Delaware and
its sole stockholder.
WHEREAS, the respective Boards of Directors of EnergySouth Alabama and EnergySouth Delaware
have determined to recommend this Agreement and the Merger to their respective shareholders and
stockholder, as the case may be.
NOW THEREFORE, in consideration of the mutual agreements and covenants set forth herein,
EnergySouth Alabama and EnergySouth Delaware hereby agree, subject to the terms and conditions
hereinafter set forth, as follows:
ARTICLE I
THE MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the Alabama Business Corporation Act, EnergySouth Alabama shall be merged with
and into EnergySouth Delaware (the “Merger”), whereupon the separate existence of EnergySouth
Alabama shall cease and EnergySouth Delaware shall be, and is hereinafter sometimes referred to as,
the “Surviving Corporation.”
1.2 Filing and Effectiveness. The Merger shall become effective, upon the filing of (i) the
certificate of merger with the Secretary of State of the State of Delaware and (ii) the articles of
merger with the Secretary of State of the State of Alabama, unless another date and time is set
forth in the certificate of merger and the articles of merger. The date and time when the Merger
shall become effective is referred to herein as the “Effective Date of the Merger.”
1.3 Effect of the Merger. On the Effective Date of the Merger, the separate existence of
EnergySouth Alabama shall cease, and the Merger shall have the effects set forth in the applicable
provisions of the Delaware General Corporation Law and the Alabama Business Corporation Act.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of EnergySouth Delaware in
effect immediately prior to the Effective Date of the Merger shall be, as of the Effective Date of
the Merger, the certificate of incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of EnergySouth Delaware in effect immediately prior to the Effective
Date of the Merger shall be, as of the Effective Date of the Merger, the bylaws of the Surviving
Corporation until duly amended in accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of the Surviving Corporation as of the
Effective Date of the Merger shall be the same as the directors and officers of EnergySouth Alabama
immediately prior to the Effective Date of the Merger.
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ARTICLE III
MANNER OF CONVERSION OF SHARES
3.1 EnergySouth Alabama Common Stock. Upon the Effective Date of the Merger, each share of
EnergySouth Alabama Common Stock (excluding shares held by shareholders who perfect their
dissenters’ rights of appraisal as provided in Section 3.2 of this Agreement) that is issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be converted into the
right to receive one fully paid and nonassessable share of EnergySouth Delaware Common Stock (the
“Merger Consideration”). As of the Effective Date of the Merger, all shares of EnergySouth Alabama
Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and
shall cease to exist and each certificate that previously represented such shares of EnergySouth
Alabama Common Stock shall thereafter represent the Merger Consideration for all such shares.
3.2 Dissenting Shareholders. Any holder of shares of EnergySouth Alabama Common Stock who
perfects his or her dissenters’ rights of appraisal in accordance with and as contemplated by
Article 13 of the Alabama Business Corporation Act shall be entitled to receive the value of such
shares in cash as determined pursuant to Article 13 of the Alabama Business Corporation Act;
provided, however, that no such payment shall be made to any dissenting shareholder unless and
until such dissenting shareholder has complied with the applicable provisions of the Alabama
Business Corporation Act, and surrendered to the Surviving Corporation the certificate or
certificates representing the shares for which payment is being made. In the event that after the
Effective Date of the Merger a dissenting shareholder of EnergySouth Alabama fails to perfect, or
effectively withdraws or loses, his or her right to appraisal and of payment for his or her shares,
such dissenting shareholder shall be entitled to receive the Merger Consideration in accordance
with Section 3.1 upon surrender of the certificate or certificates representing the shares of
EnergySouth Alabama Common Stock held by such shareholder.
3.3 EnergySouth Alabama Options, Stock Purchase Rights and Other Equity-Based Awards.
(a) Upon the Effective Date of the Merger, the Surviving Corporation shall assume and
continue any and all stock option, stock incentive and other equity-based award plans
heretofore adopted by EnergySouth Alabama (individually, an “Equity Plan” and, collectively,
the “Equity Plans”), and shall reserve for issuance under each Equity Plan a number of
shares of EnergySouth Delaware Common Stock equal to the number of shares of EnergySouth
Alabama Common Stock so reserved immediately prior to the Effective Date of the Merger. Each
unexercised option or other right to purchase EnergySouth Alabama Common Stock granted under
and by virtue of any such Equity Plan which is outstanding immediately prior to the
Effective Date of the Merger shall, upon the Effective Date of the Merger, become an option
or right to purchase EnergySouth Delaware Common Stock on the basis of one share of
EnergySouth Delaware Common Stock for each share of EnergySouth Alabama Common Stock
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issuable pursuant to any such option or stock purchase right, and otherwise on the same
terms and conditions and at an exercise or conversion price per share equal to the exercise
or conversion price per share applicable to any such EnergySouth Alabama option or stock
purchase right. Each other equity-based award relating to EnergySouth Alabama Common Stock
granted or awarded under any of the Equity Plans which is outstanding immediately prior to
the Effective Date of the Merger shall, upon the Effective Date of the Merger, become an
award relating to EnergySouth Delaware Common Stock on the basis of one share of EnergySouth
Delaware Common Stock for each share of EnergySouth Alabama Common Stock to which such award
relates and otherwise on the same terms and conditions applicable to such award immediately
prior to the Effective Date of the Merger.
(b) On or as soon as practicable following the Effective Date of the Merger,
EnergySouth Delaware shall file with the Securities and Exchange Commission one or more
registration statements on an appropriate form or one or more post-effective amendments to
previously filed registration statements under the Securities Act of 1933, as amended, with
respect to the shares of EnergySouth Delaware Common Stock which, upon the Effective Date of
the Merger, will become subject to outstanding stock options and other equity-based awards
under the Equity Plans, and shall use its best efforts to comply with any applicable state
securities or “blue sky” laws, for as long as such options or other equity-based awards
remain outstanding.
3.4 EnergySouth Delaware Common Stock. Upon the Effective Date of the Merger, each share of
EnergySouth Delaware Common Stock issued and outstanding immediately prior thereto shall, by virtue
of the Merger and without any action by the Constituent Corporations, the holder of such shares or
any other person, be cancelled without compensation therefor and returned to the status of
authorized but unissued shares.
3.5 Exchange of Certificates.
(a) After the Effective Date of the Merger, each holder of an outstanding certificate
representing EnergySouth Alabama Common Stock (excluding holders of certificates who perfect
their dissenters’ rights of appraisal as provided in Section 3.2 of this Agreement) may, at
such holder’s option, surrender the same for cancellation to such entity as the Surviving
Corporation so designates as exchange agent (the “Exchange Agent”), and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates representing
the Merger Consideration. Until so surrendered, each outstanding certificate theretofore
representing EnergySouth Alabama Common Stock shall be deemed for all purposes to represent
the Merger Consideration.
(b) The registered owners of EnergySouth Alabama Common Stock on the books and records
of EnergySouth Alabama immediately prior to the Effective Date of the Merger (excluding
registered owners who perfect their dissenters’ rights of appraisal as provided in Section
3.2 of this Agreement) shall be the registered owners of EnergySouth Delaware Common Stock
on the books and records of EnergySouth Delaware immediately after the Effective Time of the
Merger, and the holders of shares
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of EnergySouth Alabama Common Stock, until such certificates shall have been
surrendered for transfer or conversion or otherwise accounted for by the Surviving
Corporation, shall be entitled to exercise any voting and other rights with respect to, and
receive dividends and other distributions upon, the shares of EnergySouth Delaware Common
Stock that the holders of EnergySouth Alabama Common Stock would be entitled to receive
pursuant to the Merger.
(c) If any certificate representing shares of EnergySouth Delaware Common Stock is to
be issued in a name other than the name in which the certificate surrendered in exchange
therefor is registered, the following conditions must be satisfied before the issuance
thereof: (i) the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer; (ii) such transfer shall otherwise be proper; and (iii) the person
requesting such transfer shall pay to the Exchange Agent any transfer or other taxes payable
by reason of issuance of such new certificate in a name other than the name of the
registered holder of the certificate surrendered or shall establish to the satisfaction of
the Surviving Corporation that such tax has been paid or is not payable.
ARTICLE IV
GENERAL PROVISIONS
4.1 Covenants of EnergySouth Alabama. EnergySouth Alabama covenants and agrees that it will
on or before the Effective Date of the Merger take all such other actions as may be required by the
Delaware General Corporation Law and the Alabama Business Corporation Act to effect the Merger.
4.2 Covenants of EnergySouth Delaware. EnergySouth Delaware covenants and agrees that it will
on or before the Effective Date of the Merger:
(a) take such action as may be required to qualify to do business as a foreign
corporation in the states in which EnergySouth Alabama is qualified to do business
immediately before the Effective Date of the Merger and in connection therewith irrevocably
appoint an agent for service of process as required under the applicable provisions of the
relevant state laws;
(b) take all such other actions as may be required by the Delaware General Corporation
Law and the Alabama Business Corporation Act to effect the Merger.
4.3 Conditions to the Obligations of the Constituent Corporations to Effect the Merger. The
respective obligation of each Constituent Corporation to effect the Merger shall be subject to the
satisfaction at or prior to the Effective Date of the Merger of the following conditions:
(a) The Agreement shall have been approved by two thirds of the outstanding shares of
EnergySouth Alabama Common Stock entitled to vote on the Agreement, and
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the Agreement shall have been adopted by the affirmative vote of a majority of the
outstanding shares of EnergySouth Delaware Common Stock entitled to vote on the Agreement.
(b) No statute, rule, regulation, executive order, decree, ruling, injunction or other
order (whether temporary, preliminary or permanent) shall have been enacted, entered,
promulgated or enforced by any court or governmental authority of competent jurisdiction
which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided,
however that the Constituent Corporations shall use their reasonable best efforts to cause
any such decree, ruling, injunction or other order to be vacated or lifted.
(c) The shares of EnergySouth Delaware Common Stock issuable pursuant to this Agreement
shall have been approved for quotation by NASDAQ, subject to official notice of issuance.
4.4 Further Assurances. From time to time, as and when required by EnergySouth Delaware,
EnergySouth Alabama shall execute and deliver or shall cause to be executed and delivered such
deeds and other instruments, and EnergySouth Alabama shall take or cause to be taken any actions as
shall be appropriate or necessary, (a) to vest or perfect in EnergySouth Delaware or confirm that
EnergySouth Delaware shall have record ownership of or otherwise own the title to and possession of
all the property, interests, assets, rights, privileges, immunities, powers, franchises and
authority of EnergySouth Alabama on the Effective Date of the Merger or shortly thereafter and (b)
to carry out the purposes of or to effectuate this Agreement by the Effective Date of the Merger or
shortly thereafter, unless a specific deadline is established by this Agreement.
4.5 Abandonment. At any time before the Effective Date of the Merger, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the Board of Directors of
any Constituent Corporation, notwithstanding the approval or adoption, as the case may be, of this
Agreement by the shareholders or stockholder, as the case may be, of any or both of the Constituent
Corporations.
4.6 Registered Office. The registered office of the Surviving Corporation in the State of
Delaware is located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx,
Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000, and The Corporation Trust Company is the registered agent of
the Surviving Corporation at such address.
4.7 Agreement. Executed copies of this Agreement will be on file at the principal place of
business of the Surviving Corporation in Mobile, Alabama, and copies thereof will be furnished to
any shareholder or stockholder, as the case may be, of either Constituent Corporation, upon request
and without cost.
4.8 Governing Law. This Agreement shall in all respects be construed, interpreted and
enforced in accordance with and governed by the laws of the State of Delaware (without
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giving effect to principles of conflicts of laws) and, so far as applicable, the merger
provisions of the Alabama Business Corporation Act.
4.9 Counterparts. In order to facilitate the filing and recording of this Agreement, this
Agreement may be executed in any number of counterparts, each of which shall be deemed to be an
original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, EnergySouth Alabama and EnergySouth Delaware have caused this Agreement to
be executed as of the day and year first above written by their respective duly authorized
officers.
| ENERGYSOUTH, INC., | ||||||||
| an Alabama corporation | ||||||||
| By | /s/ X. X. Xxxxxxx | |||||||
| X. X. Xxxxxxx | ||||||||
| Its President and Chief Executive Officer | ||||||||
ATTEST: |
||||||||
/s/ G. Xxxxx Xxxxxxx, Xx. |
||||||||
Its Senior Vice President, General |
||||||||
Counsel and Corporate Secretary |
||||||||
| ENERGYSOUTH, INC., | ||||||||
| a Delaware corporation | ||||||||
| By | /s/ X. X. Xxxxxxx | |||||||
| X. X. Xxxxxxx Its President and Chief Executive Officer |
||||||||
ATTEST: |
||||||||
/s/ G. Xxxxx Xxxxxxx, Xx. |
||||||||
Its Senior Vice President, General |
||||||||
Counsel and Corporate Secretary |
||||||||
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