EXHIBIT 2.1
APPENDIX A
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement") dated as of February 19,
1998, by and among The Berkshire Gas Company, a Massachusetts gas utility
corporation ("Berkshire Gas"), Berkshire Gas Mergeco Gas Company, Inc., a
Massachusetts gas utility corporation ("Mergeco"), and Berkshire Energy
Resources, a Massachusetts business trust ("Holdco").
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WITNESSETH:
WHEREAS, Berkshire Gas has an authorized capitalization consisting of
(i) 4,600,000 shares of common stock, par value $2.50 per share ("Berkshire
Gas Common Stock"), of which 2,269,821 shares are issued and outstanding and
115,432 shares have been reserved for issuance pursuant to Berkshire Gas's
Share Owner Dividend Reinvestment and Stock Purchase Plan; and (ii) 105,000
shares of cumulative preferred stock, par value $100.00 per share
("Berkshire Gas Preferred Stock"), 3,212 shares of which are issued and
outstanding; the number of shares of issued and outstanding Berkshire Gas
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
Telecommunications and Energy 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)
10,000,000 shares of beneficial interest, without par value ("Holdco Common
Shares", each a "Holdco Common Share"), of which 100 shares are issued and
outstanding and owned beneficially and of record by Berkshire Gas; and (ii)
1,000,000 preferred shares, par value $100.00 per share, of which no shares
are issued and outstanding; and
WHEREAS, the Boards of Directors or the Board of Trustees of the
respective parties hereto deem it advisable and in the best interests of
Berkshire Gas and its shareholders to merge Mergeco with and into Berkshire
Gas (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 Berkshire Gas 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 and into Berkshire Gas, 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:
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
Berkshire Gas 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
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Mergeco shall cease and Mergeco shall be merged with and into Berkshire Gas
(Mergeco and Berkshire Gas being sometimes referred to collectively herein
as the "Constituent Corporations" and Berkshire Gas, 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, Berkshire Gas 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 Berkshire Gas
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 Berkshire Gas 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 Berkshire Gas 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) 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
(d) Each Holdco Common Share issued and outstanding immediately prior
to the Merger shall be canceled.
ARTICLE III
ARTICLES OF ORGANIZATION AND BYLAWS
From and after the Effective Time, and until thereafter amended as
provided by law, the Articles of Organization of Berkshire Gas as in effect
immediately prior to the Merger shall be and continue to be the 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
Articles of Organization, which are attached hereto as Annex II and
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incorporated herein. From and after the Effective Time, the Bylaws of
Berkshire Gas 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 Berkshire Gas
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 Berkshire Gas
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 Berkshire Gas 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 Berkshire Gas 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 Berkshire Gas Common Stock
shall be deemed to be closed at the Effective Time and no transfer of
outstanding shares of Berkshire Gas 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 Telecommunications and
Energy as required by Chapter 164 of the Massachusetts General Laws and all
other governmental agencies whose approval is necessary, appropriate or
desirable.
(c) The Holdco Common Shares to be issued and to be reserved for
issuance pursuant to the Merger shall have been approved for trading on the
NASDAQ National Market System.
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(d) Rich, May, Bilodeau & Flaherty, P.C. or such other counsel as
shall be acceptable to the Board shall have delivered an opinion,
satisfactory to the Board of Directors of Berkshire Gas, 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 Berkshire Gas; PROVIDED, HOWEVER,
that no such amendment, modification or supplement shall, in the sole
judgment of the Board of Directors of Berkshire Gas, materially and
adversely affect the rights of the stockholders of Berkshire Gas.
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 Berkshire Gas, by action of the
Board of Directors of Berkshire Gas 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
Berkshire Gas 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 BERKSHIRE GAS'S STOCK PLAN
Holdco shall take all required action to assume Berkshire Gas's
obligations under the Share Owner Dividend Reinvestment and Stock Purchase
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.
IN WITNESS WHEREOF, Berkshire Gas, Mergeco and Holdco, pursuant to
approval and authorization duly given by resolutions adopted by their
respective Boards of Directors or Board of Trustees, 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 or Secretary.
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ATTEST: THE BERKSHIRE GAS COMPANY
/s/ Cheryl M. Clark By: /s/ Scott S. Robinson
- ----------------------------------- --------------------------------
Cheryl M. Clark, Clerk Name: Scott S. Robinson
Title: President and Chief
Executive Officer
[THE BERKSHIRE GAS COMPANY SEAL] By: /s/ Michael J. Marrone
--------------------------------
Name: Michael J. Marrone
Title: Vice President, Treasurer
and Chief Financial Officer
ATTEST: BERKSHIRE GAS MERGECO GAS
COMPANY, INC.
/s/ Cheryl M. Clark By: /s/ Scott S. Robinson
- ----------------------------------- --------------------------------
Cheryl M. Clark, Clerk Name: Scott S. Robinson
Title: President and Chief
Executive Officer
[THE BERKSHIRE GAS MERGECO GAS By: /s/ Scott S. Robinson
--------------------------------
COMPANY, INC. SEAL Name: Michael J. Marrone
Title: Vice President and
Treasurer
ATTEST: BERKSHIRE ENERGY RESOURCES
/s/ Cheryl M. Clark By: /s/ Scott S. Robinson
- ----------------------------------- --------------------------------
Cheryl M. Clark, Secretary Name: Scott S. Robinson
Title: President and Chief
Executive Officer
[BERKSHIRE ENERGY RESOURCES SEAL]
By: /s/ Michael J. Marrone
--------------------------------
Name: Michael J. Marrone
Title: Vice President, Treasurer
and Chief Financial Officer
ANNEX I
to
Agreement and Plan of Merger
ARTICLES OF MERGER
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of
THE BERKSHIRE GAS COMPANY
(A Massachusetts Utility Corporation)
and
BERKSHIRE GAS MERGECO GAS COMPANY, INC.
(A Massachusetts Utility Corporation)
and
BERKSHIRE ENERGY RESOURCES
(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 Berkshire Gas Mergeco Gas
Company, Inc. with and into The Berkshire Gas 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 February __, 1998, 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
____________, 1998.
2. The undersigned president or vice president and clerk or
secretary or assistant clerk or secretary 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 Telecommunications and Energy 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 115 Cheshire Road, Pittsfield, Massachusetts 01201.
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:
POST OFFICE
NAME TITLE RESIDENCE ADDRESS
George R. Baldwin Director c/o 115 Cheshire Road
Pittsfield, MA 01201
John W. Bond Director c/o 115 Cheshire Road
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Pittsfield, MA 01201
Paul L. Gioia Director c/o 115 Cheshire Road
Pittsfield, MA 01201
Franklin M. Hundley Chairman and c/o 115 Cheshire Road
Director Pittsfield, MA 01201
James R. Keys Director c/o 115 Cheshire Road
Pittsfield, MA 01201
Robert B. Trask Director c/o 115 Cheshire Road
Pittsfield, MA 01201
Scott S. Robinson Director, 115 Cheshire Road
President and Pittsfield, MA 01201
Chief Executive
Officer
Michael J. Marrone Vice President, 115 Cheshire Road
Treasurer and Pittsfield, MA 01201
Chief Financial
Officer
Cheryl M. Clark Clerk 115 Cheshire Road
Pittsfield, MA 02101
5. The fiscal year of the Surviving Corporation initially adopted
shall end on the last day of the month of June 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 10:00 a.m. on
the second Wednesday in November of each year.
IN WITNESS WHEREOF, Berkshire Gas, Mergeco and Holdco, pursuant to
approval and authorization duly given by resolutions adopted by their
respective Boards of Directors or Board of Trustees, 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: _________________ THE BERKSHIRE GAS COMPANY
By: ______________________________
Name: Scott S. Robinson
Title: President and Chief Executive
Officer
By: _____________________________
Name: Cheryl M. Clark
Title: Clerk
BERKSHIRE GAS MERGECO GAS COMPANY, INC.
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By: _________________________
Name: Scott S. Robinson
Title: President and Chief Executive
Officer
By: _____________________________
Name: Cheryl M. Clark
Title: Clerk
BERKSHIRE ENERGY RESOURCES
By: _____________________________
Name: Scott S. Robinson
Title: President and Chief Executive
Officer
By: _____________________________
Name: Cheryl M. Clark
Title: Secretary