EXHIBIT 2(a)
AGREEMENT AND PLAN OF EXCHANGE
THIS AGREEMENT AND PLAN OF EXCHANGE (this "Agreement"), dated as of
March 20, 1995, is between Tucson Electric Power Company, an Arizona
corporation ("TEP"), the company whose shares will be acquired pursuant to
the Exchange described herein, UniSource Energy Corporation an Arizona
corporation ("UniSource"), the acquiring company, and NCR Holding, Inc., a
Delaware corporation, the sole shareholder of UniSource ("Shareholder"). TEP
and UniSource are hereinafter referred to, collectively, as the
("Companies").
WITNESSETH:
WHEREAS, the authorized capital stock of TEP consists of (a) 200,000,000
shares of Common Stock without par value ("Company Common Stock"), of which
160,723,702 shares are issued and outstanding, and (b) 1,000,000 shares of
Preferred Stock, without par value ("Company Preferred Stock"), of which no
shares are issued and outstanding;
WHEREAS, the authorized capital stock of UniSource consists of (a)
250,000,000 shares of Common Stock, without par value ("UniSource Common
Stock"), of which 1,000 shares are issued and outstanding and owned of record
by Shareholder, and (b) 1,000,000 shares of Preferred Stock, without par
value ("UniSource Preferred Stock"), of which no shares are issued and
outstanding;
WHEREAS, the Boards of Directors of the respective Companies deem it
desirable and in the best interests of the Companies and their shareholders
that UniSource acquire each share of issued and outstanding Company Common
Stock and that each such share of Company Common Stock be exchanged for a
share of UniSource Common Stock with the result that UniSource becomes the
owner of all outstanding Company Common Stock and that each holder of Company
Common Stock becomes the owner of an equal number of shares of UniSource
Common Stock, all on the terms and conditions hereinafter set forth;
WHEREAS, Arizona corporation law has been amended, effective as of
January 1, 1996, to permit share exchanges which bind all of the shareholders
upon the approval of a plan of exchange by a majority of all votes entitled
to be cast;
WHEREAS, the Board of Directors of TEP and UniSource have recommended
that their respective shareholders approve the Share Exchange and this
Agreement, and this Agreement has been adopted by the requisite vote of the
Shareholder pursuant to the Arizona General Corporation Act, as amended by
H.B. 2124 (the "1996 Corporation Law").
NOW, THEREFORE, in consideration of the premises, and of the agreements,
covenants and conditions hereinafter contained, the parties hereto agree with
respect to the acquisition and exchange provided for herein (the "Share
Exchange") that at the Effective Time (as hereinafter defined) each share of
Company Common Stock issued and outstanding immediately prior to the
Effective Time will be exchanged for one share of UniSource Common Stock, and
that the terms and conditions of the Share Exchange and the method of
carrying the same into effect are as follows:
ARTICLE I
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Subject to the satisfaction of the conditions and obligations of the
parties hereto, the Share Exchange will be effective upon the filing, with
the Arizona Corporation Commission, on or after January 2, 1996 in accordance
with the 1996 Corporation Law, of articles of share exchange ("Articles of
Exchange") with respect to the Share Exchange or at such later time as may be
stated in the Articles of Exchange (the time at which the Share Exchange
becomes effective being referred to herein as the "Effective Time").
ARTICLE II
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At the Effective Time:
(1) each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time shall be acquired by
UniSource and shall be exchanged for one share of UniSource
Common Stock, which shall thereupon be fully paid and non-
assessable;
(2) UniSource shall become the owner and holder of each issued and
outstanding share of Company Common stock so exchanged;
(3) each share of UniSource Common Stock issued and outstanding
immediately prior to the Effective Time shall be canceled and
shall thereupon constitute an authorized and unissued share of
UniSource Common Stock; and
(4) the former owners of Company Common Stock shall be entitled
only to receive shares of UniSource Common Stock as provided
herein.
Shares of outstanding Company Preferred Stock, if any, shall not be
exchanged or otherwise affected in connection with the Share Exchange.
ARTICLE III
------------
The consummation of the Share Exchange is subject to the following
conditions precedent:
(1) the receipt of the requisite approval of shareholders of TEP;
(2) the satisfaction of the respective obligations of the parties
hereto in accordance with the terms and conditions herein
contained;
(3) the execution and filing of appropriate Articles of Exchange
with the Arizona Corporation Commission pursuant to the 1996
Corporation Law;
(4) the receipt of such orders, authorizations, approvals or
waivers from all jurisdictive regulatory bodies, boards or
agencies, which are required in connection with the Share
Exchange and related transactions.
ARTICLE IV
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Shareholder and UniSource agree that UniSource will not engage in any
business following the execution of this Agreement until the consummation of
the Share Exchange, other than such business as is necessary to organize and
maintain the corporate status and good standing of UniSource in the State of
Arizona.
ARTICLE V
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This Agreement may be amended, modified or supplemented, or compliance
with any provision or condition hereof may be waived, at any time, by the
mutual consent of the Boards of Directors of TEP and of UniSource; provided,
however, that no such amendment, modification, supplement or waiver shall be
made or effected, if such amendment, modification, supplement or waiver
would, in the judgment of the Board of Directors of TEP, materially and
adversely affect the shareholders of TEP.
This Agreement may be terminated and the Share Exchange and related
transactions abandoned at any time prior to the time the Articles of Exchange
are filed with the Arizona Corporation Commission, if the Board of Directors
of TEP determines, in its sole discretion, that consummation of the Share
Exchange would be inadvisable or not in the best interests of TEP or its
shareholders.
ARTICLE VI
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This Agreement has been submitted to the Shareholder for approval as
provided by the 1996 Corporation Law. The affirmative vote of the
Shareholder, as the holder of all of the outstanding shares of UniSource
Common Stock was received constituting the adoption of this Agreement.
ARTICLE VII
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Following the Effective Time, each holder of an outstanding certificate
or certificates theretofore representing shares of Company Common Stock may,
but shall not be required to, surrender the same to UniSource for
cancellation and reissuance of a new certificate or certificates in such
holder's name or for cancellation and transfer, and each such holder or
transferee will be entitled to receive a certificate or certificates
representing the same number of shares of UniSource Common Stock as the
shares of Company Common Stock previously represented by the certificate or
certificates surrendered. Until so surrendered or presented for transfer,
each outstanding certificate which, immediately prior to the Effective Time,
represented Company Common Stock shall be deemed and treated for all
corporate purposes to represent the ownership of the same number of shares of
UniSource Common Stock as though such surrender or transfer and Share
Exchange had taken place. The holders of Company Common Stock at the
Effective Time shall have no right to have their shares of Company Common
Stock transferred on the stock transfer books of TEP, and such stock transfer
books shall be deemed to be closed for this purpose at the Effective Time.
IN WITNESS WHEREOF, each of TEP, UniSource and Shareholder, pursuant to
authorization and approval given by its Board of Directors, has caused this
Agreement to be executed by its President and its corporate seal to be
affixed hereto and attested by its Secretary as of the date first above
written.
TUCSON ELECTRIC POWER COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------
President
ATTEST:
/s/Xxxxxx X. Xxxxxx
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Secretary
UNISOURCE ENERGY CORPORATION
By /s/ Xxxxxx Xxxxxxxx
----------------------
President
ATTEST:
/s/Xxxxxx Xxxxxx
----------------
Secretary
NCR HOLDING, INC.
By /s/ Xxxxxx Xxxxxxxx
---------------------
Vice President
ATTEST:
/s/Xxxx Xxxxxx
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Secretary
