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EXHIBIT B-3
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MERGER AGREEMENT
BY AND AMONG
CENTERIOR ACQUISITION CORP.,
FIRSTENERGY CORP.
AND
CENTERIOR ENERGY CORPORATION
DATED AS OF
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CENTERIOR ENERGY CORPORATION MERGER AGREEMENT
PAGE
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ARTICLE I Merger of Centerior Acquisition Corporation into
Centerior Energy Corporation......................................... B-3-1
ARTICLE II The Merger -- Manner and Effect of Conversion
and Exchange......................................................... B-3-2
ARTICLE III Effective Time of the Merger........................................... B-3-2
ARTICLE IV Articles of Incorporation.............................................. B-3-2
ARTICLE V Regulations............................................................ B-3-3
ARTICLE VI Directors and Officers of the Surviving Corporation.................... B-3-3
ARTICLE VII Miscellaneous.......................................................... B-3-3
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CENTERIOR ENERGY CORPORATION MERGER AGREEMENT
THIS MERGER AGREEMENT ("Merger Agreement") is entered into as of
, 1996, pursuant to Section 1701.78 of the Ohio Revised Code, by
and among CENTERIOR ACQUISITION CORP., an Ohio corporation ("CAC"), FIRSTENERGY
CORP., an Ohio corporation ("FirstEnergy"), and CENTERIOR ENERGY CORPORATION, an
Ohio corporation ("Centerior") (the parties to this Merger Agreement are
hereinafter sometimes collectively referred to as the "Constituent
Corporations").
WITNESSETH:
WHEREAS, CAC is a wholly owned subsidiary of FirstEnergy;
WHEREAS, Ohio Edison Company, an Ohio corporation ("Ohio Edison") and
Centerior have entered into, and FirstEnergy has approved, an Agreement and Plan
of Merger dated September 13, 1996 (the "Reorganization Agreement"), providing
for the mergers of Ohio Edison Acquisition Corp., an Ohio corporation ("OEAC"),
into Ohio Edison and CAC into Centerior and resulting in Ohio Edison and
Centerior becoming subsidiaries of FirstEnergy and the common shareholders of
Ohio Edison and Centerior becoming common shareholders of FirstEnergy;
WHEREAS, the directors of each of the Constituent Corporations have
heretofore approved and the shareholders of FirstEnergy have heretofore adopted
the Reorganization Agreement and this Merger Agreement;
NOW, THEREFORE, in consideration of the premises hereof and the mutual
agreements contained herein and in the Reorganization Agreement, and in
accordance with the laws of the State of Ohio, the Constituent Corporations have
agreed, and do hereby agree that, subject to the terms and conditions of this
Merger Agreement and the Reorganization Agreement, CAC be merged into Centerior
(the "Merger"), which shall be the corporation surviving the Merger (hereinafter
sometimes referred to as the "Surviving Corporation"), the outstanding common
stock, par value $0.10 per share, of CAC ("CAC Common") shall be converted into
shares of Centerior common stock, without par value ("Centerior Common") and the
outstanding Centerior Common shall be converted into shares of common stock, par
value $0.10 per share, of FirstEnergy ("FirstEnergy Common"), 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:
ARTICLE I
MERGER OF CAC INTO CENTERIOR
1.1 CAC shall be merged into Centerior, Centerior shall be the surviving
corporation of the Merger, and the Surviving Corporation shall continue to have
the name Centerior Energy Corporation and be governed by the laws of the State
of Ohio.
1.2 The CAC Common issued and outstanding at the Effective Time, as
defined in Article III below, shall thereupon and without more be converted into
and become that number of common shares of the Surviving Corporation which shall
be equivalent to the aggregate number of shares of CAC Common outstanding
immediately prior to the Effective Time.
1.3 Each share of Centerior Common issued and outstanding at the Effective
Time (excluding any shares of Centerior Common as to which a shareholder of
Centerior has perfected rights as a dissenting shareholder under Section 1701.85
of the Ohio Revised Code unless those rights are terminated otherwise than by
purchase) shall thereupon and without more be converted into and become 0.525 of
a share of FirstEnergy Common.
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ARTICLE II
THE MERGER -- MANNER AND EFFECT OF CONVERSION AND EXCHANGE
2.1 Matters Affecting Capital Stock. Those provisions of Article III of
the Reorganization Agreement that affect the capital stock and share
certificates of CAC and Centerior and the Common Stock and related share
certificates of FirstEnergy are hereby adopted and incorporated by reference
herein.
2.2 Certain Effects of the Merger. At the Effective Time, the effect of
the Merger shall be as provided by the applicable provisions of Ohio law.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time: the separate existence of CAC shall cease; the Surviving
Corporation shall possess all assets and property of every description, and
every interest therein, wherever located, and the rights, privileges,
immunities, powers, franchises and authorities of a public, as well as of a
private, nature of CAC and Centerior; all obligations belonging to or due CAC
and Centerior shall be vested in, and become the obligations of, the Surviving
Corporation without further act or deed; title to any real estate or any
interest therein vested in CAC or Centerior shall not revert or in any way be
impaired by reason of the Merger; all rights of creditors and all liens upon any
property of CAC and Centerior shall be preserved unimpaired; and the Surviving
Corporation shall be liable for all the obligations of CAC and Centerior, and
any claim existing, or action or proceeding pending, by or against CAC or
Centerior may be prosecuted to judgment with right of appeal as if the Merger
had not taken place.
2.3 Further Assurances. If at any time contemporaneous with or after the
Effective Time either the Surviving Corporation or FirstEnergy shall consider it
to be advisable that any further conveyances, agreements, documents, instruments
and assurances of law or any other things are necessary or desirable to vest,
perfect, confirm or record in the Surviving Corporation the title to any
property, rights, privileges, obligations, powers and franchises of CAC or
Centerior or otherwise to carry out the provisions of this Merger Agreement, the
proper directors and officers of the Surviving Corporation or the proper
directors and officers of Centerior last in office shall execute and deliver,
upon request of either the Surviving Corporation or FirstEnergy, any and all
proper conveyances, agreements, documents, instruments and assurances of law,
and do all things necessary or proper to vest, perfect, or confirm title to such
property, rights, privileges, obligations, powers and franchises in the
Surviving Corporation and otherwise to carry out the provisions of this Merger
Agreement.
2.4 Effect on Centerior Debt Instruments. The Merger shall not have any
effect upon the Centerior bonds, notes and other debt securities of Centerior
issued and outstanding immediately prior to the Effective Time, and all such
securities shall remain unchanged and shall be the obligations of the Surviving
Corporation after the Effective Time.
ARTICLE III
EFFECTIVE TIME OF THE MERGER
If this Merger Agreement is duly adopted by the holders of shares of
Centerior Common as provided in the Reorganization Agreement, if the conditions
set forth in the Reorganization Agreement are duly satisfied, or waived by
Centerior, and if this Merger Agreement has not been terminated pursuant to
Section 7.2 hereof, at the time specified in the Reorganization Agreement a
certificate of merger, duly executed in accordance with Section 1701.81(A) of
the Ohio Revised Code, shall be filed by the Constituent Corporations with the
Secretary of State of Ohio. The Effective Time shall be the time at which said
certificate of merger is so filed or at such time thereafter as is provided in
the certificate of merger.
ARTICLE IV
ARTICLES OF INCORPORATION
The Amended Articles of Incorporation of Centerior, as in effect
immediately prior to the Effective Time, shall constitute the "Articles" of the
Surviving Corporation within the meaning of Xxx-
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tion 1701.01(D) of the Ohio Revised Code and shall remain in effect until
thereafter duly altered, amended, or repealed in accordance with the provisions
thereof and applicable law.
ARTICLE V
REGULATIONS
The Regulations of Centerior, as in effect immediately prior to the
Effective Time, shall constitute the Regulations of the Surviving Corporation
and shall remain in effect until thereafter duly altered, amended, or repealed
in accordance with the provisions thereof, the Articles of Incorporation of the
Surviving Corporation and applicable law.
ARTICLE VI
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
The directors and officers of Centerior in office at the Effective Time
shall be the directors and officers of the Surviving Corporation after the
Effective Time and shall continue in office in accordance with the Articles and
Regulations of the Surviving Corporation and applicable law.
ARTICLE VII
MISCELLANEOUS
7.1 Waiver and Amendment. Any Constituent Corporation may, at any time
prior to the Effective Time, by action taken by its directors or officers
thereunto duly authorized, waive any of the terms or conditions of this Merger
Agreement and/or agree to the amendment or modification of this Merger
Agreement; provided, however, that after a favorable vote by the shareholders of
a Constituent Corporation any such action shall be taken by that Constituent
Corporation only if, in the opinion of its directors or officers, such waiver or
such amendment or modification will not have any material adverse effect on the
benefits intended under this Merger Agreement for the shareholders of such party
and will not require resolicitation of any proxies from such shareholders.
7.2 Termination. This Merger Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time as provided in Article IX of
the Reorganization Agreement. If the Reorganization Agreement is terminated in
accordance with Article IX thereof, then this Merger Agreement shall
simultaneously terminate and the Merger shall be abandoned without further
action by the Constituent Corporations. In the event of termination of this
Merger Agreement, the directors of the Constituent Corporations shall each
direct their officers not to file the certificate of merger in the Office of the
Secretary of State of Ohio, notwithstanding favorable action by the shareholders
of the respective Constituent Corporations.
7.3 Limitation on Rights. Except as otherwise specifically provided
herein, nothing expressed or implied in this Merger Agreement is intended or
shall be construed to confer upon or give any person, firm or corporation, other
than the Constituent Corporations and their respective shareholders, any rights
or remedies under or by reason of this Merger Agreement or any transactions
contemplated hereby.
7.4 Captions; Governing Law. The captions in this Merger Agreement are
for convenience only and shall not be considered a part or affect the
construction or interpretation of any provision of this Merger Agreement. This
Merger Agreement shall be governed by and construed in accordance with the laws
of the State of Ohio.
7.5 Counterparts. This Merger Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties.
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IN WITNESS WHEREOF, the parties to this Merger Agreement, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors, have each caused this Merger Agreement to be executed and
attested by its President and Secretary.
CENTERIOR ACQUISITION CORP.
Attest: By
________________, Secretary ________________, President
FIRSTENERGY CORP.
Attest: By
________________, Secretary ________________, President
CENTERIOR ENERGY CORPORATION
Attest: By
________________, Secretary ________________, President
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