EXHIBIT B-1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement") dated as of March 25, 1997, by
and among Boston Edison Company, a Massachusetts electric utility corporation
("Boston Edison"), Boston Edison Mergeco Electric Company, Inc., a Massachusetts
utility corporation ("Mergeco"), and BEC Energy, a Massachusetts business trust
("Holdco").
WITNESSETH:
WHEREAS, Boston Edison has an authorized capitalization consisting of (i)
100,000,000 shares of common stock, par value $1.00 per share ("Boston Edison
Common Stock"), of which 48,514,973 shares are issued and outstanding and
1,429,424 shares have been reserved for issuance pursuant to Boston Edison's
Dividend Reinvestment and Common Stock Purchase Plan; (ii) 2,890,000 shares of
cumulative preferred stock, par value $100.00 per share ("Boston Edison
Preferred Stock"), 2,130,000 shares of which (consisting of shares of six
separate series) are issued and outstanding; and (iii) 8,000,000 shares of
preference stock, par value $1.00 per share ("Boston Edison Preference Stock"),
of which no shares are issued and outstanding; the number of shares of issued
and outstanding Boston Edison Common Stock being subject to increase to the
extent that shares reserved for issuance are issued prior to the Effective Time
(as defined below) of the Merger;
WHEREAS, Mergeco has an authorized capitalization consisting of 200,000
shares of common stock, par value $1.00 per share ("Mergeco Common Stock"), of
which 100 shares have been subscribed for by Holdco and, once the issuance
thereof has been approved by the Massachusetts Department of Public Utilities as
required by law, will be issued to and owned beneficially and of record by
Holdco;
WHEREAS, Holdco has an authorized capitalization consisting of (i)
100,000,000 shares of beneficial interest, par value $1.00 per share ("Holdco
Common Shares", each a "Holdco Common Share"), of which 100 shares are issued
and outstanding and owned beneficially and of record by Boston Edison; and (ii)
10,000,000 preferred shares, par value $1.00 per share, of which no shares are
issued and outstanding; and
WHEREAS, the Boards of Directors of the respective parties hereto deem it
advisable and in the best interests of Boston Edison and its stockholders to
merge Mergeco with and into Boston Edison (the "Merger") in accordance with
Section 96 of Chapter 164 of the Massachusetts General Laws and pursuant to this
Agreement and the Articles of Merger attached hereto as ANNEX I and incorporated
herein (the "Articles"), whereby the holders of shares of Boston Edison Common
Stock will exchange their shares for Holdco Common Shares;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the parties hereto agree that
Mergeco shall be merged with into Boston Edison, which shall be the corporation
surviving the Merger, and that the terms and conditions of the Merger, the mode
of carrying it into effect, and the manner of converting and exchanging shares
shall be as follows:
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ARTICLE I
THE MERGER
(a) Subject to and in accordance with the provisions of this Agreement,
the Articles shall be executed and acknowledged by each of Boston Edison and
Mergeco and thereafter delivered to the Secretary of State of The Commonwealth
of Massachusetts for filing, as provided in Section 102A of Chapter 164 of the
Massachusetts General Laws. The Merger shall become effective at such time as
the Articles are filed as required by law with the Secretary of State of The
Commonwealth of Massachusetts or such date, not more than thirty days after such
filing, as may be specified in the Articles (the "Effective Time"). At the
Effective Time, the separate existence of Mergeco shall cease and Mergeco shall
be merged with and into Boston Edison (Mergeco and Boston Edison being sometimes
referred to collectively herein as the "Constituent Corporations" and Boston
Edison, the corporation designated in the Articles as the surviving corporation
being sometimes referred to herein as the "Surviving Corporation");
(b) Prior to and after the Effective Time, Holdco, Boston Edison and
Mergeco, respectively, shall take all such actions as may be necessary or
appropriate in order to effectuate the Merger. In this connection, Holdco shall
issue the Holdco Common Shares which the holders of Boston Edison Common Stock
are entitled to receive as provided in Article II hereof. In the event that at
any time after the Effective 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, rights, approvals,
immunities and franchises of either of the Constituent Corporations, the
officers and directors of each of the Constituent Corporations as of the
Effective Time shall take all such further action.
ARTICLE II
TERMS OF CONVERSION AND EXCHANGE OF SHARES
At the Effective Time:
(a) Each share of Boston Edison Common Stock issued and outstanding
immediately prior to the Merger thereupon shall be changed and converted into
one Holdco Common Share, which thereupon shall be issued, fully paid and
nonassessable;
(b) The shares of Boston Edison Preferred Stock issued and outstanding
immediately prior to the Merger shall not be converted or otherwise affected by
the Merger, and each such share shall continue to be issued and outstanding and
to be one fully paid and nonassessable share of the particular series of
preferred stock of the Surviving Corporation;
(c) The shares of Boston Edison Preference Stock issued and outstanding
immediately prior to the Merger, if any, shall not be converted or otherwise
affected by the Merger, and each such share shall continue to be issued and
outstanding and to be one fully paid and nonassessable share of the particular
series of preference stock of the Surviving Corporation;
(d) Each share of Mergeco Common Stock issued and outstanding immediately
prior to the Merger shall be converted into one share of common stock of the
Surviving Corporation, which thereupon shall be issued, fully paid and
nonassessable; and
(e) Each Holdco Common Share issued and outstanding immediately prior to
the Merger shall be canceled.
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ARTICLE III
ARTICLES OF ORGANIZATION AND BYLAWS
From and after the Effective Time, and until thereafter amended as provided
by law, the Restated Articles of Organization of Boston Edison as in effect
immediately prior to the Merger shall be and continue to be the Restated
Articles of Organization of the Surviving Corporation. The purposes of the
Surviving Corporation, the total number of shares and par value of each class of
stock which the Surviving Corporation is authorized to issue and a description
of each class of stock authorized at the Effective Time, with the preferences,
voting powers, qualifications, special or relative rights or privileges as to
each class and any series thereof then established, are as stated in such
Restated Articles of Organization, which are attached hereto as ANNEX II and
incorporated herein. From and after the Effective Time, the Bylaws of Boston
Edison shall be and continue to be the Bylaws of the Surviving Corporation until
amended in accordance with law.
ARTICLE IV
DIRECTORS AND OFFICERS
The persons who are directors and officers of Boston Edison 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 Effective 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 V
STOCK CERTIFICATES
Following the Effective Time, each holder of an outstanding certificate or
certificates theretofore representing shares of Boston Edison Common Stock may,
but shall not be required to, surrender the same to Holdco for cancellation or
transfer, and each such holder or transferee will be entitled to receive
certificates representing the same number of Holdco Common Shares as shares of
Boston Edison Common Stock previously represented by the surrendered stock
certificates. Until so surrendered or presented for transfer, each outstanding
certificate which, prior to the Effective Time, represented Boston Edison Common
Stock shall be deemed and treated for all corporate purposes to represent the
ownership of the same number of Holdco Common Shares as though such surrender or
transfer and exchange had taken place. The stock transfer books for the Boston
Edison Common Stock shall be deemed to be closed at the Effective Time and no
transfer of outstanding shares of Boston Edison Common Stock outstanding prior
to the Effective Time shall be made thereafter on such books.
ARTICLE VI
CONDITIONS OF THE MERGER
Consummation of the Merger is subject to the satisfaction of the following
conditions:
(a) The Merger shall have received the approval of the holders of each
class of common stock outstanding and entitled to vote thereupon of each of the
Constituent Corporations as required by Section 96 of Chapter 164 of the
Massachusetts General Laws.
(b) The issuance of Mergeco Common Stock and the Merger shall have been
approved by the Massachusetts Department of Public Utilities as required by
Chapter 164 of the Massachusetts General Laws and all other governmental
agencies whose approval is necessary, appropriate or desirable.
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(c) The Holdco Common Shares to be issued and to be reserved for issuance
pursuant to the Merger shall have been approved for listing, upon official
notice of issuance, by the New York Stock Exchange and the Boston Stock
Exchange.
(d) Ropes & Xxxx shall have delivered an opinion, satisfactory to the
Board of Directors of Boston Edison, with respect to the tax consequences of the
Merger.
ARTICLE VII
AMENDMENT AND TERMINATION
The parties hereto 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 stockholders of Boston Edison; PROVIDED, HOWEVER, that no such
amendment, modification or supplement shall, in the sole judgment of the Board
of Directors of Boston Edison, materially and adversely affect the rights of the
stockholders of Boston Edison.
This Agreement may be terminated and the Merger and other transactions
herein provided for abandoned at any time, whether before or after approval of
this Agreement by the stockholders of Boston Edison, by action of the Board of
Directors of Boston Edison if said Board of Directors determines for any reason
that the consummation of the transactions provided for herein would for any
reason be inadvisable or not in the best interests of Boston Edison or its
stockholders.
ARTICLE VIII
EFFECTIVE TIME OF THE MERGER
Subject to the prior satisfaction of the conditions of the Merger set forth
in Article VI hereof and the authority to terminate this Agreement as set forth
in Article VII hereof, the Constituent Corporations and Holdco shall do all such
acts and things as shall be necessary or desirable in order to make the
Effective Time occur as soon thereafter as practicable.
ARTICLE IX
ASSUMPTION OF BOSTON EDISON'S STOCK PLANS
Holdco shall take all required action to assume Boston Edison's obligations
under the following plans: (i) the Dividend Reinvestment and Common Stock
Purchase Plan, (ii) the Director Stock Plan, (iii) the Performance Share Plan,
(iv) the Negotiated Savings Plan for Production and Maintenance Employees, (v)
the Negotiated Savings Plan for Office, Technical & Professional Employees and
(vi) the Boston Edison Savings Plan.
ARTICLE X
MISCELLANEOUS
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, Boston Edison, Mergeco and Holdco, pursuant to approval
and authorization duly given by resolutions adopted by their respective Boards
of Directors, have each caused this Agreement and Plan of Merger to be executed
as of the date first written above by its President or one of its Vice
Presidents and Treasurer or Assistant Treasurer and its corporate or common seal
to be affixed hereto and attested by its Clerk.
ATTEST: BOSTON EDISON COMPANY
/s/ XXXXXXXX X. XXXXXXXXX By: /s/ XXXXXX X. MAY
------------------------- --------------------------------
Xxxxxxxx X. Xxxxxxxxx Name: Xxxxxx X. May
Clerk Title: Chairman, President and
Chief Executive Officer
[BOSTON EDISON COMPANY SEAL] By: /s/ XXXXX X. JUDGE
--------------------------------
Name: Xxxxx X. Judge
Title: Treasurer
ATTEST: BOSTON EDISON MERGECO
ELECTRIC COMPANY, INC.
/s/ XXXXXXXX X. XXXXXXXXX By: /s/ XXXXXX X. MAY
------------------------- -------------------------------
Xxxxxxxx X. Xxxxxxxxx Name: Xxxxxx X. May
Clerk Title: Chairman, President and
Chief Executive Officer
[BOSTON EDISON MERGECO
ELECTRIC COMPANY, INC. SEAL] By: /s/ XXXXX X. JUDGE
--------------------------------
Name: Xxxxx X. Judge
Title: Treasurer
ATTEST: BEC ENERGY
/s/ XXXXXXXX X. XXXXXXXXX By: /s/ XXXXXX X. MAY
-------------------------- ---------------------------------
Xxxxxxxx X. Xxxxxxxxx Name: Xxxxxx X. May
Clerk Title: Chairman, President and
Chief Executive Officer
[BEC ENERGY SEAL] By: /s/ XXXXX X. JUDGE
--------------------------------
Name: Xxxxx X. Judge
Title: Treasurer
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ANNEX I
to
Agreement and Plan of Merger
ARTICLES OF MERGER
of
BOSTON EDISON COMPANY
(A Massachusetts Utility Corporation)
and
BOSTON EDISON MERGECO ELECTRIC COMPANY, INC.
(A Massachusetts Utility Corporation)
and
BEC ENERGY
(A Massachusetts Business Trust)
Pursuant to the provisions of Section 102A of Chapter 164 of the
Massachusetts General Laws, the undersigned corporations adopt the following
Articles of Merger for the purpose of merging Boston Edison Mergeco Electric
Company, Inc. with and into Boston Edison Company, which shall be the Surviving
Corporation:
1. Attached hereto and incorporated herein by reference is the
Agreement and Plan of Merger dated as of March __, 1997, of the undersigned
corporations. The Surviving Corporation will furnish a copy of said agreement
to any of its stockholders, or to any person who was a stockholder of a
Constituent Corporation, upon written request and without charge. The Effective
Time as defined therein is 5:00 P.M., Boston time on ____________, 1997.
2. The undersigned president or vice president and clerk or
assistant clerk of each undersigned corporation hereby state under the penalties
of perjury that the attached Agreement and Plan of Merger has been duly executed
on behalf of such corporation and has been approved by the stockholders of such
corporation and by the Department of Public Utilities of The Commonwealth of
Massachusetts in the manner required by Section 96 of Chapter 164 of the
Massachusetts General Laws.
3. The post office address of the initial principal office of the
Surviving Corporation is 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
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4. The name, residence and post office address of each of the
initial directors and the chairman, president, treasurer and clerk of the
Surviving Corporation are as follows:
NAME TITLE RESIDENCE POST OFFICE ADDRESS
Xxxxxx X. May Chairman of 000 Xxxxxxx Xxxx c/o 000 Xxxxxxxx Xxxxxx
the Board Xxxxxxxx, XX 00000 Xxxxxx, XX 00000
Chief Executive
Officer and
President
Xxxxxxx X. Xxxxxxx Director 000 Xxxxx Xxxxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxx X. Xxxxxxxxxx Director 000 Xxxxx Xxxxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx. Xxxxxxxx 0 Xxxxxx Xxxxx Xxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx Director Blueberry Xxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxx Director 00 Xxxxxxx Xxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx Director 100 U.N. Plaza c/o 000 Xxxxxxxx Xxxxxx
000 Xxxx 00xx Xxxxxx Xxxxxx, XX 00000
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx Director 00 Xxxxx Xxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxxx Xxxx, Xx. Director 000 Xxxx Xxxxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx Director 0 Xxxxxxxxxx Xxxx c/o 000 Xxxxxxxx Xxxxxx
X. Xxxxxxxx, XX 00000 Xxxxxx, XX 00000
Xxxxx X. Judge Senior Vice 00 Xxxxxxx Xxxx Xxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000 Xxxxxx, XX 00000
and Treasurer
Xxxxxxxx X. Xxxxxxxxx Clerk 000 Xxxxxxxx Xxxxxx c/o 000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
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5. The fiscal year of the Surviving Corporation initially adopted
shall end on the last day of the month of December in each year.
6. The date and time initially fixed in the Bylaws for the annual
meeting of the stockholders of the Surviving Corporation is 11:00 a.m. on the
last Tuesday in April of each year.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, Boston Edison, Mergeco and Holdco, pursuant to approval
and authorization duly given by resolutions adopted by their respective Boards
of Directors, have each caused these Articles of Merger to be executed by its
president or one of its vice presidents and its clerk or one of its assistant
clerks.
Dated:
----------------
BOSTON EDISON COMPANY
By:
------------------------------
Name:
Title:
By:
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Clerk
BOSTON EDISON MERGECO
ELECTRIC COMPANY, INC.
By:
------------------------------
Name:
Title:
By:
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Clerk
BEC ENERGY
By:
------------------------------
Name:
Title:
By:
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Clerk
