ARTICLES OF MERGER OF
EMPIRE GAS OPERATING CORPORATION
WITH AND INTO
EMPIRE GAS CORPORATION
______________________
Pursuant to the provisions of Section 351.447 of the General
and Business Corporation Law of Missouri, Empire Gas Corporation, a Missouri
corporation ("Parent") hereby certifies that:
1. Parent is the owner of all of the 10,448,162 issued
and outstanding shares of common stock, par value $.001 per share ("Empire
Common Stock") of Empire Gas Operating Corporation, a Missouri corporation
(the "Subsidiary"), and Parent is the owner of all of the 100,000 shares of
the Class A Preferred Stock, without par value, of Subsidiary and all of the
100,000 shares of the Class B Preferred Stock, without par value, of
Subsidiary. Parent is therefore in compliance with the 90 percent ownership
requirement of Section 351.447 of the General and Business Corporation Law
of Missouri and it will maintain at least 90 percent ownership of all
classes of stock of the Subsidiary until the issuance by the Secretary of
State of a certificate of merger with respect to the merger of Subsidiary
with and into Parent.
2. Parent, by the following resolutions of its Board
of Directors, duly adopted by the unanimous written consent of the members
thereof dated June 20, 1994 and acting pursuant to Section 351.447 of the
General and Business Corporation Law of the State of Missouri, approved a
plan of merger of Subsidiary with and into Parent:
WHEREAS, Empire Gas Corporation (the "Parent") is a
corporation duly organized and validly existing under the laws of the State
of Missouri having authorized capital stock consisting of 20,000,000 shares
of common stock, $.001 par value per share ("Parent Common Stock"), of which
13,832,270 shares are outstanding; and
WHEREAS, Empire Gas Operating Corporation (the "Subsidiary")
is a corporation duly organized and validly existing under the laws of the
State of Missouri having authorized capital stock consisting of 25,000,000
shares of common stock, $.001 par value per share ("Subsidiary Common
Stock"), of which 10,448,162 shares are outstanding, 100,000 shares of
Class A Preferred Stock, without par value, all of which are outstanding,
and 100,000 shares of Class B Preferred Stock, without par value, all of
which are outstanding; and
WHEREAS, Parent owns 10,448,162 shares of the Subsidiary
Common Stock and all shares of the Class A and Class B Preferred Stock,
which is in excess of 90% of the issued and outstanding shares of such
stock; and
WHEREAS, the Board of Directors of Parent deems it advisable
that the Subsidiary merge with and into Parent, upon the terms and subject
to the conditions set forth herein and in accordance with the laws of the
State of Missouri (such merger hereinafter referred to as the "Merger"), and
that the shares of Subsidiary Common Stock, be cancelled upon consummation
of the Merger as set forth herein; and
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WHEREAS, Parent intends that the Merger qualify as a tax-
free transaction under Section 332 of the Internal Revenue Code of 1986 for
federal income tax purposes;
NOW, THEREFORE, IT IS RESOLVED, that the Subsidiary be
merged into Parent pursuant to Section 351.447 of the General and Business
Corporation Law of the State of Missouri on the following terms and
conditions:
SECTION l
Effect of the Merger; Manner and
Basis of Converting and Cancelling Shares
1.1 At the Effective Time (as hereinafter defined),
Subsidiary shall be merged with and into Parent, the separate corporate
existence of Subsidiary (except as may be continued by operation of law)
shall cease, and Parent shall continue as the surviving corporation, all
with the effects provided by applicable law. Parent, in its capacity as the
surviving corporation of the Merger, is hereinafter sometimes referred to as
the "Surviving Corporation."
1.2 At the Effective Time, each share of common stock,
$.01 par value per share of Subsidiary ("Subsidiary Common Stock") issued
and outstanding immediately prior to the Effective Time (all of which are
owned by Parent and which consist of 10,448,162 shares of common stock)
shall by virtue of the Merger and without any action by Subsidiary, Parent,
the stockholders of Subsidiary or Parent or any other person, be cancelled.
1.3 At the Effective Time, each share of the Class A
Preferred Stock, without par value, of Subsidiary ("Subsidiary Class A
Preferred Stock") and each share of the Class B Preferred Stock, without par
value, of Subsidiary ("Subsidiary Class B Preferred Stock") issued and
outstanding immediately prior to the Effective Time (all of which are owned
by Parent and which consist of 100,000 shares of Subsidiary Class A
Preferred Stock and 100,000 shares of Subsidiary Class B Preferred Stock)
shall by virtue of the Merger and without any action by Subsidiary, Parent,
the stockholders of Subsidiary or Parent or any other person, be cancelled.
1.4 Shares of stock of Parent issued and outstanding
immediately prior to the Effective Time shall not be affected at all by
virtue of the Merger and shall continue to be outstanding immediately after
the Effective Time.
1.5 At and after the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, powers and franchises,
of both a public and private nature, and be subject to all the restrictions,
disabilities and duties of Subsidiary, and all rights, privileges, powers
and franchises of Subsidiary, and all property, real, personal and mixed,
and all debts due on whatever account, including subscriptions for shares
and including the obligations under the Credit Agreement dated as of May 20,
1993 between Subsidiary and First National Bank of Boston, as agent (the
"Credit Agreement"), the obligations under an Indenture dated as of January
15, 1981 between Subsidiary and Continental Illinois National Bank and Trust
Company of Chicago with respect to 9% Convertible Subordinated Debentures
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due December 31, 1998, as amended by the Supplemental Indenture No. 1
thereto dated as of December 3, 1985 and the Second Supplement to the
Indenture dated December 13, 1989 (the "9% Convertible Subordinated
Debenture Indenture"), the obligations under an Indenture dated as of June
7, 1983 between Subsidiary and J. Henry Schroder Bank and Trust Company with
respect to 9% Subordinated Debentures due December 31, 2007 and the First
Supplement thereto dated December 13, 1989 (the "9% Subordinated Debenture
Indenture"), the obligations under an Indenture dated as of March 31, 1986
between Subsidiary and First Trust Company, Inc. with respect to 12% Senior
Secured Debentures due 2002, as amended by the First Supplement to the
Indenture dated as of December 13, 1989 (the "12% Senior Secured Debenture
Indenture"), and all other choses in action, and all and every other
interest, of or belonging to Subsidiary, shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without further act
or deed; and title to any real estate, or any interest therein, vested in
Subsidiary shall not revert or be in any way impaired by reason of the
Merger; and the Surviving Corporation shall thenceforth be responsible and
liable for all liabilities and obligations of Subsidiary; and any claim
existing or action or proceeding pending by or against Subsidiary may be
prosecuted to judgment as if the Merger had not taken place and the
Surviving Corporation may be substituted in its place; all with the effect
set forth in Section 351.450 of the General and Business Law of Missouri
(the "Missouri Law").
1.6 At the Effective Time, the Surviving Corporation
shall execute supplemental indentures assuming the obligations of Subsidiary
under the 9% Convertible Subordinated Debenture Indenture, the 9%
Subordinated Debenture Indenture, and the 12% Senior Secured Debenture
Indenture, pursuant to Sections 13.01, 12.01, and 13.01 thereof,
respectively, and shall execute or provide such additional documents as are
required pursuant to those provisions.
1.7 At the Effective Time, the Surviving Corporation
shall execute assumption agreements assuming the obligations of Subsidiary
under the Credit Agreement and shall execute or provide such additional
documents as are required pursuant to those agreements.
SECTION 2
Effective Time
2.1 Upon satisfaction of the conditions set forth in
Section 4 of this Merger Agreement, Parent shall cause Articles of Merger to
be executed, verified, attested to, and filed with the Secretary of State of
the State of Missouri as provided in Section 351.430 and 351.435 of the
Missouri Law.
2.2 The Merger shall become effective (the "Effective
Time") upon the issuance of a certificate of merger by the Secretary of
State of the State of Missouri.
SECTION 3
Articles of Incorporation and
By-Laws; Board of Directors
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3.1 The Articles of Incorporation of Parent as in
effect at the Effective Time shall govern the Surviving Corporation, until
they shall be amended as provided by law.
3.2 The By-Laws of Parent as in effect at the Effective
Time, subject to alteration, amendment or repeal from time to time by the
Board of Directors or the stockholders of the Surviving Corporation, shall
govern the Surviving Corporation.
3.3 The members of the Board of Directors of Subsidiary
holding office immediately prior to the Effective Time shall be the members
of the Board of Directors of the Surviving Corporation and the officers of
Subsidiary holding office immediately prior to the Effective Time shall be
the officers (holding the same positions as they held with Subsidiary
immediately prior to the Effective Time) of the Surviving Corporation and
shall hold such offices until the expiration of their current terms, or
their prior resignation, removal or death. Exhibit A.
SECTION 4
Conditions
4.1 Consummation of the Merger shall be conditioned
upon (i) the receipt by Subsidiary of a waiver of Sections 8.12, 10.1.2
(solely with respect to violations of Section 8.12), and 10.1.6(c) of the
Credit Agreement, and (ii) the effectiveness of the registration statement
on Form S-1 filed by the Parent with respect to the offering of senior
secured notes by the Parent in aggregate principal amount expected to result
in aggregate offering proceeds of $100,000,000.
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IT IS FURTHER RESOLVED, that the President or any Vice
President of the Parent is hereby authorized to execute and verify, and the
Secretary of the Parent is authorized to attest Articles of Merger effecting
the Merger and to file such Articles with the Secretary of State of the
State of Missouri, and to take such further action as is deemed necessary
and advisable by such officers to effect the Merger.
IN WITNESS WHEREOF, Empire Gas Corporation has caused these
Articles to be executed in duplicate and verified by Stephen R. Plaster, its
President, and attested by Valeria Schall, its Secretary, this 27th day of
June, 1994.
Empire Gas Corporation
By: /s/ Stephen R. Plaster
______________________
Stephen R. Plaster
President
Attest
By: /s/ Valeria Schall
____________________
Valeria Schall
Secretary
STATE OF MISSOURI )
COUNTY OF LACLEDE ) ss
I, Valeria Schall, a notary public, do hereby certify
that on the 27th day of June, 1994, personally appeared before me, Stephen
R. Plaster, who, being by me first duly sworn, declared that he is the
person who signed the foregoing document as President of Empire Gas
Corporation and that the statements therein contained are true.
/s/ Valeria Schall
__________________
Notary Public
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IN WITNESS WHEREOF, Empire Gas Operating Corporation has
caused these Articles to be executed in duplicate and verified by Larry
Weis, its Vice President, and attested by Earl L. Noe, its Secretary, this
27th day of June, 1994.
Empire Gas Operating Corporation
By: /s/ Larry Weis
_______________
Larry Weis
Vice President
Attest
By: /s/ Earl L. Noe
_______________
Earl L. Noe
Secretary
STATE OF MISSOURI )
COUNTY OF LACLEDE ) ss
I, Jackie Day, a notary public, do hereby certify that
on the 27th day of June, 1994, personally appeared before me, Earl L. Noe,
who, being by me first duly sworn, declared that he is the person who signed
the foregoing document as Vice President of Empire Gas Operating Corporation
and that the statements therein contained are true.
/s/ Jackie Day
_______________
Notary Public
My commission expires 11-30-97
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Exhibit A
OFFICERS AND DIRECTORS - EMPIRE GAS OPERATING CORPORATION 4/1/94
Officers
Robert W. Plaster Chairman of the Board of Chief
Executive Office
Paul S. Lindsey Vice Chairman of the Board &
Chief Operating Officer
Stephen R. Plaster President
Robert L. Wooldrigde Chief Operating Officer -
Eastern
James E. Acreman Senior Vice President -
Operations
Earl L. Noe Senior Vice President -
Administration
Larry A. Weis Vice President - Treasurer
Dwight R. Gilpin Vice President
Floyd J. Waterman Vice President
Gwen R. VanDerhoef Vice President
Thomas Flak Vice President - Data Processing
Willis D. Green Vice President - Controller
Kevin B. Moran Vice President - Property and
Tax
Valeria Schall Vice President
Mark Buettner Divisional Vice President
Robert C. Heagerty Divisional Vice President
Kenneth DePrinzio Divisional Vice President
Luther Gill Divisional Vice President
Paul Stahlman Divisional Vice President
Charles Jones Regional Vice President
Business address of all of the above is:
1700 S. Jefferson
Lebanon, Missouri 65536
Directors
Robert W. Plaster Stephen R. Plaster
1700 S. Jefferson 1700 S. Jefferson
Lebanon, Missouri 65536 Lebanon, Missouri 65536
Paul S. Lindsey S.A. Spencer
1700 S. Jefferson 685 Fifth Avenue, 14th Floor
Lebanon, Missouri 65536 New York, NY 10022