EXHIBIT B-1
FORM OF AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made as of _________,
1998, by and among CENTRAL MAINE POWER COMPANY, a Maine corporation ("Central
Maine"), CMP MERGER CO., a Maine corporation ("MergeCo"), and HOLDCO, INC., a
Maine corporation ("HoldCo").
WHEREAS, Central Maine has authorized capital consisting of (i) 80,000,000
shares of Common Stock, with a par value of $5 per share ("Central Maine Common
Stock"), of which 32,442,752 shares are issued and outstanding as of the date
hereof; (ii) 2,000,000 shares of Preferred Stock, with a par value of $25 per
share ("Central Maine $25 Preferred Stock"), no shares of which are issued and
outstanding as of the date hereof; (iii) 5,713 shares of 6% Preferred Stock,
with a par value of $100 per share ("Central Maine 6% Preferred Stock"), all of
which shares are issued and outstanding as of the date hereof; and (iv)
2,300,000 shares of Dividend Series Preferred Stock, with a par value of $100
per share ("Central Maine Dividend Series Preferred Stock"), of which 1,115,275
shares are issued and outstanding as of the date hereof; the number of shares of
outstanding Central Maine Common Stock being subject to increase to the extent
shares may be issued pursuant to Central Maine's Dividend Reinvestment and
Common Stock Purchase Plan prior to the Merger Date (as defined below), and the
number of shares of outstanding Central Maine Dividend Series Preferred Stock
being subject to decrease to the extent shares are redeemed or purchased and
retired by Central Maine prior to said Merger Date; and
WHEREAS, MergeCo has authorized capital consisting of 1,000 shares of
Common Stock, with a par value of $5 per share ("MergeCo Common Stock"), of
which 100 shares are issued and outstanding and are owned beneficially and of
record by HoldCo; and
WHEREAS, HoldCo has authorized capital consisting of 80,000,000 shares of
Common Stock, with a par value of $5 per share ("HoldCo Common Stock"), of which
100 shares are issued and outstanding and are owned beneficially and of record
by Central Maine; and
WHEREAS, the Boards of Directors of the respective parties hereto deem it
advisable to merge MergeCo with and into Central Maine (the "Merger") in
accordance with the Maine Business Corporation Act ("Maine BCA"), this Agreement
and the Articles of Merger attached hereto as Exhibit A (the "Articles"), for
the purpose and with the effect of establishing HoldCo as the parent corporation
of Central Maine in a transaction intended to qualify for tax-free treatment;
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, the parties agree that (i) MergeCo shall be merged with and into Central
Maine, said action constituting the "Merger", (ii) Central Maine shall be the
corporation surviving the Merger, and (iii) the terms and conditions of the
Merger, the means of carrying it into effect and the manner of converting and
exchanging shares of capital stock shall be as follows:
ARTICLE 1
THE MERGER
1.1 Plan of Merger. This Agreement shall constitute a plan of merger
between Central Maine and MergeCo (Central Maine and MergeCo being sometimes
referred to herein as the "Participating Corporations") in accordance with
Section 901 of the Maine BCA.
1.2 Articles of Merger. Subject to and in accordance with the provisions of
this Agreement, the Articles shall be executed by the Participating Corporations
and delivered to the Secretary of State of the State of Maine for filing, as
provided in Section 903 of the Maine BCA.
1.3 Merger Date. The Merger shall become effective upon the filing of the
Articles with the Secretary of State of the State of Maine or on such later date
not more than 60 days after such filing as may be specified in the Articles
(such effective date being herein called the "Merger Date"). On the Merger Date,
the separate existence of MergeCo shall cease and MergeCo shall be merged with
and into Central Maine, which shall continue its corporate existence as the
surviving corporation (Central Maine, as the surviving corporation, being
sometimes referred to herein as the "Surviving Corporation"). Central Maine, as
the Surviving Corporation, shall succeed, without other transfer, to all the
rights and property of MergeCo and shall be subject to all the debts and
liabilities of MergeCo in the same manner as if Central Maine had itself
incurred them. All rights of creditors and all liens upon the property of each
of Central Maine and MergeCo shall be preserved unimpaired.
1.4 Appropriate Actions. Prior to, at and after the Merger Date, HoldCo,
Central Maine 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 shares of HoldCo Common Stock for which outstanding
shares of Central Maine Common Stock will be exchanged and surrendered on a
share-for-share basis to the extent provided in Article 2 of this Agreement. In
case at any time after the Merger Date 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 Participating Corporations, the
officers and directors of each of the Participating Corporations as of the
Merger Date shall take all such further action.
ARTICLE 2
TERMS OF CONVERSION AND EXCHANGE OF SHARES
On the Merger Date:
2.1 Central Maine Common Shares. Each share of Central Maine Common Stock
issued and outstanding immediately prior to the Merger shall be automatically
changed and converted into and exchanged for one share of HoldCo Common Stock,
which shall thereupon be issued and fully-paid and non-assessable; provided,
however, that such conversion and exchange shall not affect shares of holders,
if any, who perfect their rights as dissenting shareholders under Sections 908
and 909 of the Maine BCA.
2.2 Central Maine Preferred Shares. Shares of Central Maine $25 Preferred
Stock, Central Maine 6% Preferred Stock and Central Maine Dividend Series
Preferred Stock issued and outstanding immediately prior to the Merger shall not
be converted or otherwise affected by the Merger. Each such share shall continue
to be (i) issued and outstanding and (ii) a fully-paid and non-assessable share
of Central Maine $25 Preferred Stock, Central Maine 6% Preferred Stock or
Central Maine Dividend Series Preferred Stock, as the case may be, of the
Surviving Corporation.
2.3 MergeCo Shares. The shares of MergeCo Common Stock issued and
outstanding immediately prior to the Merger shall be automatically changed and
converted into a number of shares of common stock, par value $5.00 per share, of
the Surviving Corporation (which shall thereupon be issued and fully-paid and
non-assessable), equal to the number of shares of Central Maine Common Stock as
are issued and outstanding immediately prior to the Merger Date.
2.4 HoldCo Shares. Each share of HoldCo Common Stock issued and outstanding
and held by Central Maine immediately prior to the Merger shall be cancelled.
2.5 Central Maine Stock Options. Each outstanding option to purchase shares
of Central Maine Common Stock will be assumed by HoldCo. Each such option will
be exercisable in accordance with its existing terms for the same number of
shares of HoldCo Common Stock as the number of shares of Central Maine Common
Stock subject to such option.
ARTICLE 3
ARTICLES OF INCORPORATION AND BYLAWS
3.1 Central Maine's Articles of Incorporation. From and after the Merger
Date, and until thereafter amended as provided by law, the Articles of
Incorporation of Central Maine as in effect immediately prior to the Merger
shall be and continue to be the Articles of Incorporation of the Surviving
Corporation.
3.2 Central Maine's Bylaws. From and after the Merger Date, and until
thereafter amended as provided by law, the Bylaws of Central Maine as in effect
immediately prior to the Merger shall be and continue to be the Bylaws of the
Surviving Corporation.
ARTICLE 4
DIRECTORS AND OFFICERS
4.1 Central Maine's Directors and Officers. The persons who are directors
and officers of Central Maine 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 Date, 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
STOCK CERTIFICATES
5.1 Pre-Merger Central Maine Common Stock. Following the Merger Date, each
holder of an outstanding certificate or certificates that, prior to the Merger
Date, represented shares of Central Maine Common Stock may, but shall not be
required to, surrender the same to HoldCo for cancellation or registration of
transfer, and each such holder or transferee will be entitled to receive in
exchange a certificate or certificates representing the same number of shares of
HoldCo Common Stock as the shares of Central Maine Common Stock previously
represented by the stock certificate(s) surrendered.
5.2 Outstanding Certificates. Until surrendered or presented for
registration of transfer in accordance with Section 5.1 above, each outstanding
certificate that, prior to the Merger Date, represented Central Maine Common
Stock shall be deemed and treated for all corporate purposes to represent the
ownership of the same number of shares of HoldCo Common Stock as though such
surrender and exchange had taken place.
5.3 Post-Merger Rights of Holders. Following the Merger Date, the holders
of certificates representing Central Maine Common Stock outstanding immediately
prior to the Merger Date shall cease to have any rights with respect to stock of
the Surviving Corporation and their sole rights shall be with respect to the
HoldCo Common Stock into and for which their shares of Central Maine Common
Stock shall have been converted and exchanged in the Merger, subject to the
rights of any dissenting shareholders under Section 909 of the Maine BCA.
ARTICLE 6
CONDITIONS TO THE MERGER
Completion of the Merger is subject to the satisfaction of the following
conditions:
6.1 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 Participating Corporations as and to the extent required by
their respective Articles of Incorporation and the Maine BCA.
6.2 HoldCo Common Stock Listed. The HoldCo Common Stock 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.
6.3 Tax Ruling or Opinion. There shall have been obtained a ruling or
rulings of the Internal Revenue Service, or an opinion of tax counsel, in form
and substance satisfactory to the Board of Directors of Central Maine and its
counsel, with respect to certain tax consequences of the Merger and related
matters.
6.4 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 Central Maine 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 7
AMENDMENT AND TERMINATION
7.1 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 pre-Merger shareholders of Central Maine
(as provided in Section 6.1 above); provided, however, that no such amendment,
modification or supplement shall, if agreed to after such approval by the
pre-Merger shareholders of Central Maine, change any of the principal terms of
this Agreement.
7.2 Termination. This Agreement may be terminated and the Merger and other
transactions provided for by this Agreement may be abandoned at any time,
whether before or after approval of this Agreement by the pre-Merger
shareholders of Central Maine, by action of the Board of Directors of Central
Maine if such Board of Directors determines for any reason that the completion
of the transactions provided for herein would for any reason be inadvisable or
not in the best interests of Central Maine or its shareholders. The parties
hereto, and any officers or directors thereof, shall not have liability to any
person, including, without limitation, any shareholder of Central Maine, in the
event of such termination.
ARTICLE 8
ASSUMPTION OF OBLIGATIONS UNDER CENTRAL MAINE STOCK PLANS
8.1 Assumption of Plans. HoldCo shall take all required corporate action to
assume as of the Merger Date the obligations of Central Maine under the Central
Maine 1987 Executive Incentive Plan and the Central Maine Long-Term Incentive
Plan.
ARTICLE 9
MISCELLANEOUS
9.1 Approval of HoldCo Shareholder. By its execution and delivery of this
Agreement, Central Maine, as the sole pre- Merger shareholder of HoldCo,
consents to, approves and adopts this Agreement and approves the Merger, subject
to approval of this Agreement by pre-Merger shareholders of Central Maine (as
provided in Section 6.1 above).
9.2 Approval of MergeCo Shareholder. By its execution and delivery of this
Agreement, HoldCo, as the sole pre-Merger shareholder of MergeCo, consents to,
approves and adopts this Agreement and approves the Merger, subject to approval
of this Agreement by pre-Merger shareholders of Central Maine (as provided in
Section 6.1 above).
9.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maine.
IN WITNESS WHEREOF, Central Maine, HoldCo and MergeCo, pursuant to approval
and authorization duly given by resolutions adopted by their respective Boards
of Directors, have each caused this Agreement to be executed by its President or
one of its Vice Presidents and its corporate seal affixed hereto and attested by
its Secretary or one of its Assistant Secretaries.
Central Maine:
CENTRAL MAINE POWER COMPANY, [Corporate Seal]
a Maine corporation
By: Attest:_________________
Name:
Its: Title:
HoldCo: [Corporate Seal]
HOLDCO, INC.,
a Maine corporation
By: Attest:________________
Name:
Its: Title:
MergeCo: [Corporate Seal]
CMP MERGER CO.,
a Maine corporation
Attest:_______________
By: Name:
Title:
Its:
EXHIBIT A
STATE OF MAINE
ARTICLES OF MERGER
OF
CMP MERGER CO.
A Maine Corporation
INTO
CENTRAL MAINE POWER COMPANY*
A Maine Corporation
*A QUASI-PUBLIC CORPORATION HAVING THE RIGHT
TO ENGAGE IN BUSINESS AS AN ELECTRIC COMPANY
Pursuant to Title 13-A M.R.S.A. ss.903, the undersigned corporations adopt the
following Articles of Merger:
FIRST: The plan of merger is set forth in Exhibit A attached hereto and
made a part hereof.
SECOND: As to each participating corporation, the number of shares
outstanding and the number of shares entitled to vote on such plan, and the
number of such shares voted for and against the plan, are as follows:
Number of
Number of Shares Shares Shares
Name of Shares Entitled Voted Voted
Corporation Outstanding to Vote For Against
CMP Merger Co. 100 shs. of 100 100 0
Common Stock
Central Maine 32,442,752 _____ ____
Power Company shs. of 32,442,752
Common Stock
5,713 shs. _____ ____
of 6% 5,713
Preferred
Stock
THIRD: Holders of Central Maine Common Stock and 6% Preferred Stock were
entitled to vote together as a single class, and holders of Central Maine Common
Stock were entitled to vote as a separate class.
FOURTH: The address of the registered office in Maine of CMP Merger Co.,
herein designated as the merged corporation, is x/x Xxxxxxxxx xxx Xxxxx, Xxxxxxx
Xxxxx Power Company, 00 Xxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000.
The address of the registered office in Maine of Central Maine Power
Company, herein designated as the surviving corporation, is 00 Xxxxxx Xxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000.
Dated CENTRAL MAINE POWER COMPANY*
(Surviving Corporation)
I certify that I have custody
of the minutes showing the above By
action by the shareholders of
Central Maine Power Company (type of print name and capacity)
(Clerk, Secretary or Asst. By
Secretary)
(type of print name and capacity)
I certify that I have custody
of the minutes showing the above
action by the shareholders of CMP CMP MERGER CO.
Merger Co.
By
(Clerk, Secretary or Asst. (type of print name and capacity)
Secretary)
By
CENTRAL MAINE POWER COMPANY*
(Surviving Corporation) (type of print name and capacity)
-------------
* The name of the corporation should be typed, and the document must be signed
by (1) the Clerk or (2) the President or a Vice-President and the Secretary or
an Assistant Secretary or such other officer as the bylaws may designate as a
second certifying officer.
