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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER , dated January 30, 2007 (this "Agreement"), is
between EnergySouth, Inc., an Alabama corporation ("EnergySouth
Alabama"), and EnergySouth, Inc., a Delaware corporation
("EnergySouth Delaware") and a wholly owned subsidiary of
EnergySouth Alabama. EnergySouth Alabama and EnergySouth Delaware
are sometimes hereinafter collectively referred to as the
"Constituent Corporations."
RECITALS
WHEREAS, EnergySouth
Alabama is a corporation organized and existing under the laws of
the State of Alabama, and, as of the date hereof, has 7,959,302
shares of common stock, par value $0.01 per share, issued and
outstanding ("EnergySouth Alabama Common Stock").
WHEREAS, EnergySouth
Delaware is a corporation organized and existing under the laws of
the State of Delaware, and, as of the date hereof, has 1,000 shares
of common stock, par value $0.01 per share, issued and outstanding
("EnergySouth Delaware Common Stock"), all of which are held by
EnergySouth Alabama.
WHEREAS, the respective
Boards of Directors of EnergySouth Alabama and EnergySouth Delaware
have adopted and approved, as the case may be, this Agreement,
which is the plan of merger for purposes of the Alabama Business
Corporation Act and the agreement of merger for purposes of the
Delaware General Corporation Law, and the transactions contemplated
by this Agreement, including the Merger (as hereinafter
defined).
WHEREAS, the Board of
Directors of EnergySouth Alabama has determined that for the
purpose of effecting the reincorporation of EnergySouth Alabama in
the State of Delaware, this Agreement and the transactions
contemplated by this Agreement, including the Merger, are advisable
and in the best interests of EnergySouth Alabama and its
shareholders, and the Board of Directors of EnergySouth Delaware
has determined that this Agreement and the transactions
contemplated by this Agreement, including the Merger are advisable
and in the best interests of EnergySouth Delaware and its sole
stockholder.
WHEREAS, the respective
Boards of Directors of EnergySouth Alabama and EnergySouth Delaware
have determined to recommend this Agreement and the Merger to their
respective shareholders and stockholder, as the case may be.
NOW THEREFORE, in
consideration of the mutual agreements and covenants set forth
herein, EnergySouth Alabama and EnergySouth Delaware hereby agree,
subject to the terms and conditions hereinafter set forth, as
follows:
ARTICLE I
THE MERGER
1.1 Merger. In accordance with the
provisions of this Agreement, the Delaware General Corporation Law
and the Alabama Business Corporation Act, EnergySouth Alabama shall
be merged with and into EnergySouth Delaware (the "Merger"),
whereupon the separate existence of EnergySouth Alabama shall cease
and EnergySouth Delaware shall be, and is hereinafter sometimes
referred to as, the "Surviving Corporation."
1.2 Filing and Effectiveness. The
Merger shall become effective, upon the filing of (i) the
certificate of merger with the Secretary of State of the State of
Delaware and (ii) the articles of merger with the Secretary of
State of the State of Alabama, unless another date and time is set
forth in the certificate of merger and the articles of merger. The
date and time when the Merger shall become effective is referred to
herein as the "Effective Date of the Merger."
1.3 Effect of the Merger. On the
Effective Date of the Merger, the separate existence of EnergySouth
Alabama shall cease, and the Merger shall have the effects set
forth in the applicable provisions of the Delaware General
Corporation Law and the Alabama Business Corporation Act.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND
OFFICERS
2.1 Certificate of Incorporation.
The Certificate of Incorporation of EnergySouth Delaware in effect
immediately prior to the Effective Date of the Merger shall be, as
of the Effective Date of the Merger, the certificate of
incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of
EnergySouth Delaware in effect immediately prior to the Effective
Date of the Merger shall be, as of the Effective Date of the
Merger, the bylaws of the Surviving Corporation until duly amended
in accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The
directors and officers of the Surviving Corporation as of the
Effective Date of the Merger shall be the same as the directors and
officers of EnergySouth Alabama immediately prior to the Effective
Date of the Merger.
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ARTICLE III
MANNER OF CONVERSION OF SHARES
3.1 EnergySouth Alabama Common
Stock. Upon the Effective Date of the Merger, each share of
EnergySouth Alabama Common Stock (excluding shares held by
shareholders who perfect their dissenters’ rights of
appraisal as provided in Section 3.2 of this Agreement) that
is issued and outstanding immediately prior thereto shall, by
virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be
converted into the right to receive one fully paid and
nonassessable share of EnergySouth Delaware Common Stock (the
"Merger Consideration"). As of the Effective Date of the Merger,
all shares of EnergySouth Alabama Common Stock shall no longer be
outstanding and shall automatically be cancelled and retired and
shall cease to exist and each certificate that previously
represented such shares of EnergySouth Alabama Common Stock shall
thereafter represent the Merger Consideration for all such
shares.
3.2 Dissenting Shareholders. Any
holder of shares of EnergySouth Alabama Common Stock who perfects
his or her dissenters’ rights of appraisal in accordance with
and as contemplated by Article 13 of the Alabama Business
Corporation Act shall be entitled to receive the value of such
shares in cash as determined pursuant to Article 13 of the
Alabama Business Corporation Act; provided , however
, that no such payment shall be made to any dissenting shareholder
unless and until such dissenting shareholder has complied with the
applicable provisions of the Alabama Business Corporation Act, and
surrendered to the Surviving Corporation the certificate or
certificates representing the shares for which payment is being
made. In the event that after the Effective Date of the Merger a
dissenting shareholder of EnergySouth Alabama fails to perfect, or
effectively withdraws or loses, his or her right to appraisal and
of payment for his or her shares, such dissenting shareholder shall
be entitled to receive the Merger Consideration in accordance with
Section 3.1 upon surrender of the certificate or certificates
representing the shares of EnergySouth Alabama Common Stock held by
such shareholder.
3.3 EnergySouth Alabama Options,
Stock Purchase Rights and Other Equity-Based Awards.
(a) Upon the Effective Date of the
Merger, the Surviving Corporation shall assume and continue any and
all stock option, stock incentive and other equity-based award
plans heretofore adopted by EnergySo
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