AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made as of
________________, 2002, by and between EXETER & HAMPTON ELECTRIC COMPANY, a New
Hampshire corporation ("E&H"), and CONCORD ELECTRIC COMPANY, a New Hampshire
corporation ("CECo").
WHEREAS, CECo has authorized capital consisting of (1) 250,000 shares of
Common Stock, no par value ("CECo Common Stock"), of which 131,745 shares are
issued and outstanding and are owned beneficially and of record by Unitil
Corporation ("Unitil"); (2) 2,250 shares of non-cumulative preferred stock, with
a par value of $100 per shares ("CECo Non-Cumulative Preferred Stock"), of which
2,250 shares are issued and outstanding; and (3) 15,000 shares of cumulative
preferred stock, with a par value of $100 per share ("CECo Cumulative Preferred
Stock"), of which 2,150 shares are issued and outstanding in a single series
designated the "8.70% Series", and the remaining 12,850 shares are undesignated
and unissued;
WHEREAS, E&H has authorized capital consisting of (1) 197,417 shares of
Common Stock, with a par value of $5 per share ("E&H Common Stock"), of which
195,000 shares are issued and outstanding and owned beneficially and of record
by Unitil, and (2) 25,000 shares of cumulative preferred stock, with a par value
of $100 per share ("E&H Cumulative Preferred Stock"), of which a total of 9,704
shares are issued and outstanding in four series as follows, and the remaining
15,296 shares are undesignated and unissued: (a) 840 shares of the Preferred
Stock 5% Dividend Series ("E&H 5% Series"), (b) 1,680 shares of the Preferred
Stock 6% Dividend Series ("E&H 6% Series"), (c) 3,331 shares of the 8.75% Series
("E&H 8.75% Series"), and (d) 3,853 shares of the 8.25% Series ("E&H 8.25%
Series"); and
WHEREAS, the Board of Directors of each of CECo and E&H deems it advisable
to merge E&H with and into CECo (the "Merger") in accordance with the New
Hampshire Business Corporation Act ("BCA") and this Agreement;
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, the parties agree that (1) E&H shall be merged with and into CECo, said
action constituting the "Merger", (2) CECo shall be the corporation surviving
the Merger, and (3) the terms and conditions of the Merger, the means of
carrying it into effect and the manner of converting shares of capital stock
shall be as follows:
ARTICLE 1
THE MERGER
ss.1.1. Plan of Merger. This Agreement shall constitute a plan of merger
between CECo and E&H (CECo and E&H being sometimes referred to herein as the
"Constituent Corporations") in accordance with Section 11.01 of the BCA.
ss.1.2. Articles of Merger. Subject to and in accordance with the
provisions of this Agreement, articles of merger complying with Section 11.05 of
the BCA (the "Articles of
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Merger") shall be executed by the Constituent Corporations and delivered to
the Secretary of State of the State of New Hampshire for filing, as
provided in Section 11.05 of the BCA.
ss.1.3. Merger Time. The Merger shall become effective upon the filing of
the Articles of Merger by the Secretary of State of the State of New Hampshire
(the effective time of the Merger being herein called the "Merger Time"). At the
Merger Time, the separate existence of E&H shall cease and E&H shall be merged
with and into CECo, which shall continue its corporate existence as the
surviving corporation (CECo, as the surviving corporation, being sometimes
referred to herein as the "Surviving Corporation"). CECo, as the Surviving
Corporation, shall succeed, without other transfer, to all the rights and
property of E&H and shall be subject to all the debts and liabilities of E&H in
the same manner as if CECo had itself incurred them. All rights of creditors and
all liens upon the property of each of CECo and E&H shall be preserved
unimpaired.
ss.1.4. Appropriate Actions. Prior to, at and after the Merger Time, CECo
and E&H, respectively, shall take all such actions as may be necessary or
appropriate in order to effectuate the Merger. In case at any time after the
Merger Time any further action is necessary or desirable to carry out the
purposes of this Agreement and to vest the Surviving Corporation with full title
to all properties, assets, privileges, rights, immunities and franchises of
either of the Constituent Corporations, the officers and directors of each of
the Constituent Corporations as of the Merger Time shall take all such further
action.
ARTICLE 2
TERMS OF CONVERSION AND EXCHANGE OF SHARES
ss.2.1. Conversion and Exchange. At the Merger Time,
(a) each share of CECo Common Stock issued and outstanding immediately
prior to the Merger shall remain issued and outstanding;
(b) each share of CECo Non-Cumulative Preferred Stock issued and
outstanding immediately prior to the Merger, the holder of which does not
perfect dissenters' rights in accordance with Sections 13.21 and 13.23 of
the BCA, shall remain issued and outstanding;
(c) each share of CECo Cumulative Preferred Stock issued and
outstanding immediately prior to the Merger shall remain issued and
outstanding;
(d) all of the shares of E&H Common Stock issued and outstanding
immediately prior to the Merger shall, without further action on the part
of anyone, be converted into one share, in the aggregate, of CECo Common
Stock;
(e) each share of E&H 5% Series issued and outstanding immediately
prior to the Merger, the holder of which does not perfect dissenters'
rights in accordance with Sections 13.21 and 13.23 of the BCA, shall,
without further action on the part of anyone,
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be converted into one share of a new series of CECo Cumulative
Preferred Stock to be designated the "5% Series";
(f) each share of E&H 6% Dividend issued and outstanding immediately
prior to the Merger, the holder of which does not perfect dissenters'
rights in accordance with Sections 13.21 and 13.23 of the BCA, shall,
without further action on the part of anyone, be converted into one share
of a new series of CECo Cumulative Preferred Stock to be designated the "6%
Series";
(g) each share of E&H 8.75% Series issued and outstanding immediately
prior to the Merger, the holder of which does not perfect dissenters'
rights in accordance with Sections 13.21 and 13.23 of the BCA, shall,
without further action on the part of anyone, be converted into one share
of a new series of CECo Cumulative Preferred Stock to be designated the
"8.75% Series"; and
(h) each share of E&H 8.25% Series issued and outstanding immediately
prior to the Merger, the holder of which does not perfect dissenters'
rights in accordance with Sections 13.21 and 13.23 of the BCA, shall,
without further action on the part of anyone, be converted into one share
of a new series of CECo Cumulative Preferred Stock to be designated the
"8.25% Series".
ss.2.2. Dissenters' Rights. The Surviving Corporation shall make all
payments required in accordance with the BCA to shareholders of either of the
Constituent Corporations who perfect dissenters' rights in accordance with
Sections 13.21 and 13.23 of the BCA.
ARTICLE 3
ARTICLES OF INCORPORATION AND BYLAWS
ss.3.1. CECo's Articles of Incorporation. From and after the Merger Time,
and until thereafter amended as provided by law, the Articles of Incorporation
of CECo, as hereby amended in accordance with ss.3.2 hereof, shall be and
continue to be the Articles of Incorporation of the Surviving Corporation.
ss.3.2. Amendments to CECo's Articles of Incorporation. At the Merger Time,
the Articles of Incorporation of CECo shall be amended as follows:
(a) Amendment to Article I. Article I of CECo's Articles of
Incorporation shall be amended by deleting the current text thereof in its
entirety, and substituting therefor the following:
Article I
The name of the Company shall be Unitil Energy
Systems, Inc. and its principal place of business shall
be located in Concord in the County of Merrimack in the
State of New Hampshire, but the Company may carry on
any portion of its business at other
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places, either within or without the State of New
Hampshire, subject, however, to the laws of said State.
(b) Amendment to Article I-A. Article I-A of CECo's Articles of
Incorporation shall be amended by deleting subdivision 12 thereof in its
entirety, and substituting therefor the following new subdivisions 12
through 15:
12. The second series of the Cumulative Preferred
Stock shall consist of 840 shares of Cumulative
Preferred Stock, 5% Series, $100 par value, for which
the annual dividend rate is fixed at 5%. In the event
of any voluntary liquidation, dissolution, or winding
up of the affairs of the corporation, or upon any
redemption and retirement of the whole or any part of
the Cumulative Preferred Stock, 5% Series, the premium
fixed for the Cumulative Preferred Stock, 5% Series
shall be $2.00 per share.
13. The third series of the Cumulative Preferred
Stock shall consist of 1,680 shares of Cumulative
Preferred Stock, 6% Series, $100 par value, for which
the annual dividend rate is fixed at 6%. In the event
of any voluntary liquidation, dissolution, or winding
up of the affairs of the corporation, or upon any
redemption and retirement of the whole or any part of
the Cumulative Preferred Stock, 6% Series, the premium
fixed for the Cumulative Preferred Stock, 6% Series
shall be $3.00 per share.
14. The fourth series of the Cumulative Preferred
Stock shall consist of 3,331 shares of Cumulative
Preferred Stock, 8.75% Series, $100 par value, for
which the annual dividend rate is fixed at 8.75%. In
the event of any voluntary liquidation, dissolution, or
winding up of the affairs of the corporation, or upon
any redemption and retirement of the whole or any part
of the Cumulative Preferred Stock, 8.75% Series, there
shall be no premium.
15. The fifth series of the Cumulative Preferred
Stock shall consist of 3,853 shares of Cumulative
Preferred Stock, 8.25% Series, $100 par value, for
which the annual dividend rate is fixed at 8.25%. In
the event of any voluntary liquidation, dissolution, or
winding up of the affairs of the corporation, or upon
any redemption and retirement of the whole or any part
of the Cumulative Preferred Stock, 8.25% Series, there
shall be no premium.
ss.3.3. CECo's Bylaws. From and after the Merger Time, and until thereafter
amended as provided by law, the Bylaws of CECo as in effect immediately prior to
the Merger shall be and continue to be the Bylaws of the Surviving Corporation.
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ARTICLE 4
DIRECTORS AND OFFICERS
ss.4.1. CECo's Directors and Officers. The persons who are directors and
officers of CECo immediately prior to the Merger shall continue as directors and
officers, respectively, of the Surviving Corporation and shall continue to hold
office as provided in the Bylaws of the Surviving Corporation. If, at or
following the Merger Time, a vacancy shall exist in the Board of Directors or in
the position of any officer of the Surviving Corporation, such vacancy may be
filled in the manner provided in the Bylaws of the Surviving Corporation.
ARTICLE 5
CONDITIONS TO THE MERGER
Completion of the Merger is subject to the satisfaction of the following
conditions:
ss.5.1. Shareholder Approval. The principal terms of this Agreement and the
transactions provided for herein shall have been approved by holders of capital
stock of each of the Constituent Corporations as and to the extent required by
their respective organizational documents and the BCA.
ss.5.2. Regulatory Approvals. All authorizations by and approvals of any
governmental or public authority or agency deemed necessary or advisable by the
Board of Directors of CECo in connection with the Merger and other related
transactions shall have been obtained, shall be in full force and effect, shall
not have been revoked and shall be legally sufficient to authorize the
transactions contemplated by this Agreement.
ARTICLE 6
AMENDMENT AND TERMINATION
ss.6.1. Amendment. The parties to this Agreement, by mutual consent of
their respective Boards of Directors, may amend, modify or supplement this
Agreement in such manner as may be agreed upon by them in writing at any time
before or after approval of this Agreement by the shareholders of the
Constituent Parties; provided, however, that no such amendment, modification or
supplement shall, if agreed to after such approval by the pre-Merger
shareholders of the Constituent Parties, change any of the principal terms of
this Agreement without further approval of such shareholders.
ss.6.2. Termination. This Agreement may be terminated and the Merger and
other transactions provided for by this Agreement may be abandoned at any time
by the mutual written consent of the parties hereto.
ARTICLE 7
MISCELLANEOUS
ss.7.1. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Hampshire.
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IN WITNESS WHEREOF, CECo and E&H have each caused this Agreement to be
executed by its respective officer thereunto duly authorized as of the date
first written above.
EXETER & HAMPTON ELECTRIC COMPANY CONCORD ELECTRIC COMPANY
By:_________________________________ By:_________________________________
Name: Name:
Title: Title:
