EXHIBIT 2.2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER ("Agreement") is made as of December 12,
1995, by and among SAN DIEGO GAS & ELECTRIC COMPANY, a California
corporation ("SDG&E"), SAN DIEGO MERGER COMPANY, a California
corporation ("MergeCo"), and ENOVA CORPORATION, a California
corporation ("ParentCo"), with reference to the following facts:
A. SDG&E has authorized capital consisting of (i) 255 million
shares of Common Stock, without par value ("SDG&E Common Stock"), of
which approximately 116,525,418 shares are issued and outstanding;
(ii) 1,375,000 shares of Cumulative Preferred Stock, $20 par value
("Cumulative Preferred Stock"), of which 1,373,770 shares (consisting
of four separate series) are issued and outstanding; and (iii) 10
million shares of Preference Stock (Cumulative), without par value
("Preference Stock"), of which 3,190,000 shares (consisting of four
separate series) are issued and outstanding.
B. MergeCo has authorized capital consisting of 1000 shares
of Common Stock ("MergeCo Common Stock"), of which 100 shares are
issued and outstanding and owned beneficially and of record by
ParentCo.
C. ParentCo has authorized capital consisting of 300 million
shares of Common Stock ("ParentCo Common Stock"), of which 100 shares
are issued and outstanding and owned beneficially and of record by
SDG&E, and 30 million shares of Preferred Stock, none of which have
been issued.
D. The Boards of Directors of the respective parties hereto
deem it advisable to merge MergeCo with and into SDG&E (the "Merger")
in accordance with the California General Corporation Law ("California
GCL") and this Agreement for the purpose of establishing ParentCo as
the parent corporation for SDG&E 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 SDG&E (the "Merger"), (ii) SDG&E shall be the
corporation surviving the Merger, and (iii) the terms and conditions
of the Merger, the mode 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 Officers' Certificates. Subject to and in accordance with the
provisions of this Agreement, officers' certificates of SDG&E and
MergeCo (the "Officers' Certificates") shall be signed and verified
and thereafter delivered, together with a copy of this Agreement, to
the office of the Secretary of State of California for filing, all as
provided in Section 1103 of the California GCL.
1.2 Effective Time. The Merger shall become effective at 12:01 a.m.
on January 1, 1996 (the "Effective Time"). At the Effective Time, the
separate existence of MergeCo shall cease and MergeCo shall be merged
with and into SDG&E, which shall continue its corporate existence as
the surviving corporation (SDG&E and MergeCo being sometimes referred
to herein as the "Constituent Corporations" and SDG&E, as the surviving
corporation, being sometimes referred to herein as the "Surviving
Corporation"). SDG&E 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 SDG&E had
itself incurred them. All rights of creditors and all liens upon the
property of each of SDG&E and MergeCo shall be preserved unimpaired.
1.3 Appropriate Actions. Prior to and after the Effective Time,
ParentCo, SDG&E and MergeCo, respectively, shall take all such actions
as may be necessary or appropriate in order to
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effectuate the Merger. In this connection, ParentCo shall issue the
shares of ParentCo Common Stock into which outstanding shares of SDG&E
Common Stock will be converted on a share-for-share basis to the
extent provided in Article 2 of this Agreement. In case 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, privileges,
rights, 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 2
Terms of Conversion and Exchange of Shares
At the Effective Time:
2.1 SDG&E Common Stock. Each share of SDG&E Common Stock issued and
outstanding immediately prior to the Merger shall be automatically
changed and converted into one share of ParentCo Common Stock, which
shall thereupon be issued and fully-paid and non- assessable; provided,
however, that such conversion shall not affect shares of holders, if
any, who perfect their rights as dissenting shareholders under Chapter
13 of the California GCL.
2.2 SDG&E Preferred Stock. Shares of the Cumulative Preferred Stock
and Preference Stock of SDG&E 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 nonassessable share (of
Cumulative Preferred Stock or Preference 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 all of the issued and outstanding shares of
Common Stock of the Surviving Corporation, which shall thereupon be
issued and fully-paid and nonassessable, with the effect that the
number of issued and outstanding shares of Common Stock of the
Surviving Corporation shall be the same as the number of issued and
outstanding shares of SDG&E Common Stock immediately prior to the
Effective Time.
2.4 ParentCo Shares. Each share of ParentCo Common Stock issued and
outstanding immediately prior to the Merger shall be canceled.
ARTICLE 3
Articles of Incorporation and Bylaws
3.1 SDG&E's Restated Articles. From and after the Effective Time,
and until thereafter amended as provided by law, the Restated Articles
of Incorporation, as amended, of SDG&E as in effect immediately prior
to the Merger shall be and continue to be the Restated Articles of
Incorporation, as amended, of the Surviving Corporation.
3.2 SDG&E's Bylaws. From and after the Effective Time, and until
thereafter amended as provided by law, the Bylaws of SDG&E 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
The persons who are directors and officers of SDG&E 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
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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 5
Stock Certificates
5.1 Pre-Merger SDG&E Common. Following the Effective Time, each
holder of an outstanding certificate or certificates theretofore
representing shares of SDG&E Common Stock may, but shall not be
required to, surrender the same to ParentCo for cancellation or
transfer, and each such holder or transferee will be entitled to
receive a certificate or certificates representing the same number of
shares of ParentCo Common Stock as the shares of SDG&E Common Stock
previously represented by the stock certificate(s) surrendered.
5.2 Outstanding Certificates. Until surrendered or presented for
transfer in accordance with Section 5.1 above, each outstanding
certificate which, prior to the Effective Time, represented SDG&E
Common Stock shall be deemed and treated for all corporate purposes to
represent the ownership of the same number of shares of ParentCo
Common Stock as though such surrender or transfer and exchange had
taken place.
5.3 SDG&E Stock Transfer Books. The stock transfer books for SDG&E
Common Stock shall be deemed to be closed at the Effective Time and no
transfer of shares of SDG&E Common Stock outstanding prior to the
Effective Time shall thereafter be made on such books.
5.4 Post-Merger Rights of Holders. Following the Effective Time, the
holders of certificates representing SDG&E Common Stock outstanding
immediately prior to the Effective Time shall cease to have any rights
with respect to stock of the Surviving Corporation and their sole
rights shall be with respect to the ParentCo Common Stock into which
their shares of SDG&E Common Stock shall have been converted by the
Merger.
ARTICLE 6
Conditions of 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
shall have been approved by such holders of capital stock of each of
the Constituent Corporations as is required by the California GCL.
6.2 SDG&E Preferred Vote. The principal terms of this Agreement
shall have been approved by the holders of at least two-thirds of the
combined outstanding shares of Cumulative Preferred Stock and
Preference Stock.
6.3 ParentCo Common Stock Listed. The ParentCo 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.
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-
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Merger shareholders of SDG&E (as provided in Sections 6.1 and 6.2
above); provided, however, that no such amendment, modification or
supplement shall, if agreed to after such approval by the pre-Merger
shareholders of SDG&E, 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 SDG&E, by action of the board of directors
of SDG&E 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 SDG&E or its
shareholders.
ARTICLE 8
Miscellaneous
8.1 Approval of ParentCo Shares. By its execution and delivery of
this Agreement, SDG&E, as the sole pre-Merger shareholder of ParentCo,
consents to, approves and adopts this Agreement and approves the
Merger, subject to approval of this Agreement by the pre- Merger
shareholders of SDG&E (as provided in Sections 6.1 and 6.2 above).
8.2 Approval of MergeCo Shares. By its execution and delivery of
this Agreement, ParentCo, 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 the pre- Merger
shareholders of SDG&E (as provided in Sections 6.1 and 6.2 above).
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8.3 No Counterparts. This agreement may not be executed in
counterparts.
IN WITNESS WHEREOF, SDG&E, ParentCo 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 chairman of the board or its president or one of its
vice presidents and by its secretary or one of its assistant
secretaries.
SDG&E:
San Diego Gas & Electric Company,
a California corporation
By: /s/ Xxxxxx X. Page
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Its: Chairman and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Its: Assistant Secretary
ParentCo:
Enova Corporation,
a California corporation
By: /s/ Xxxxxx X. Page
--------------------------------------
Its: Chairman and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Its: Assistant Secretary
MergeCo:
San Diego Merger Company,
a California corporation
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------------
Its: Chairman and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------------
Its: Secretary
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