Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as
of
December 13, 2005, by and between GEORGIA
POWER COMPANY, a Georgia corporation
("Georgia Power"), and SAVANNAH ELECTRIC
AND POWER COMPANY, a Georgia
corporation ("Savannah Electric").
WHEREAS, Georgia Power has authorized capital stock consisting of
(i)
15,000,000 shares of Common Stock, without
par value ("Georgia Power Common
Stock"), of which 7,761,500 shares are
issued and outstanding and are owned
beneficially and of record by The Southern
Company ("Southern"), (ii) 50,000,000
shares of Class A Preferred Stock ("Georgia
Power Class A Preferred Stock"), of
which all shares are undesignated and
unissued, and (iii) 5,000,000 shares of
Preferred Stock ("Georgia Power Preferred
Stock"), of which 145,689 shares are
currently issued and outstanding and are
designated as the $4.60 Preferred
Stock, 1954 Series ("Georgia Power $4.60
Preferred Stock");
WHEREAS, Savannah Electric has authorized capital stock consisting
of
(i) 16,000,000 shares of Common Stock, with
a par value of $5 per share
("Savannah Electric Common Stock"), of
which 10,844,635 shares are issued and
outstanding and are owned beneficially and
of record by Southern, and (ii)
4,000,000 shares of Preferred Stock
("Savannah Electric Preferred Stock"), of
which a total of 1,800,000 shares are
issued and outstanding and are designated
as the 6.00% Series Preferred Stock,
Non-Cumulative, Par Value $25 per Share
("Savannah Electric 6.00% Preferred
Stock"); and
WHEREAS, the Board of Directors of each of Georgia Power and
Savannah
Electric deems it advisable to merge
Savannah Electric with and into Georgia
Power in accordance with the Georgia
Business Corporation Code ("GBCC"), Chapter
4 of Title 14 of the Official Code of
Georgia Annotated and this Agreement;
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, the parties agree that
(i) Savannah Electric shall be merged
with and into Georgia Power (hereinafter
the "Merger"), (ii) Georgia Power shall
be the corporation surviving the Merger,
and (iii) the terms and conditions of
the Merger, the means of carrying it into
effect and the manner of converting
shares of capital stock shall be as
follows:
ARTICLE 1
THE MERGER
1.1 Plan of Merger. This Agreement shall constitute a plan of
merger
between Georgia Power and Savannah Electric
(Georgia Power and Savannah Electric
being sometimes referred to herein as the
"Constituent Corporations") in
accordance with Article II of the GBCC.
1.2 Certificate of Merger. Upon satisfaction of the conditions
set
forth in Article 7 below, and subject to
and in accordance with the provisions
of this Agreement, a certificate of merger
complying with ss. 14-2-1105 of the
GBCC (the "Certificate of Merger") shall be
executed by Georgia Power and
delivered to the Secretary of State of the
State of Georgia for filing in
accordance with ss. 14-2-1105 of the
GBCC.
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1.3 Merger Time. The Merger shall become effective at the time
specified in the Certificate of Merger
filed with the Secretary of State of the
State of Georgia (the effective time of the
Merger being herein called the
"Merger Time"). At the Merger Time, the
separate existence of Savannah Electric
shall cease and Savannah Electric shall be
merged with and into Georgia Power,
which shall continue its corporate
existence as the surviving corporation
(Georgia Power, as the surviving
corporation, being sometimes referred to herein
as the "Surviving Corporation"). From and
after the Merger Time, Georgia Power,
as the Surviving Corporation, shall be
possessed of all the rights, privileges,
powers and franchises of a public and
private nature of Savannah Electric and
shall be subject to all of the duties,
liabilities, debts and obligations of
each of the Constituent Corporations in the
same manner as if Georgia Power had
itself incurred them.
1.4 Appropriate Actions. Prior to, at and after the Merger
Time,
Georgia Power and Savannah Electric,
respectively, shall take all such actions
as may be necessary or appropriate in order
to effectuate the Merger. In case at
any time after the Merger 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 Merger Time shall take all
such further action.
ARTICLE 2
TERMS OF CONVERSION AND EXCHANGE OF SHARES
2.1 Conversion
and Exchange. At the
Merger Time,
(a) each share of Georgia Power Common Stock issued and
outstanding immediately prior to the Merger shall remain issued
and
outstanding;
(b) each share of Georgia Power $4.60 Preferred Stock issued
and outstanding on the date hereof shall have been redeemed;
(c) the issued and outstanding shares of Savannah Electric
Common Stock, all of which shall continue to be held by Southern
until
the Merger Time, without further action on the part of anyone,
shall be
converted into the right to receive an aggregate of 1,500,000
shares of
Georgia Power Common Stock; and
(d) each share of Savannah Electric 6.00% Preferred Stock
issued and outstanding immediately prior to the Merger shall,
without
further action on the part of anyone, be converted into the right
to
receive one share of a new series of Georgia Power Class A
Preferred
Stock, non-cumulative, par value $25 per share, which shall be
designated as Georgia Power's "6 1/8% Series Class A Preferred
Stock."
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ARTICLE 3
CHARTER AND BYLAWS
3.1 Georgia Power's Charter. From and after the Merger Time, and
until
thereafter amended as provided by law, the
Charter of Georgia Power, as amended
in accordance with ss. 3.2 hereof, shall be
and continue to be the Charter of
the Surviving Corporation.
3.2 Amendments to
Georgia Power's Charter. At or prior to the Merger
Time:
(a) the Charter of Georgia Power shall be amended and restated
in substantially the form attached hereto
as Exhibit A; and
(b) the Charter of Georgia Power, as so amended and restated,
shall be further amended to designate
1,800,000 shares of Georgia Power's 6 1/8%
Series Class A Preferred Stock, with such
amendment in substantially the form
attached hereto as Exhibit B.
3.3 Georgia Power's Bylaws. From and after the Merger Time, and
until
thereafter amended as provided by law, the
Bylaws of Georgia Power 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
4.l Georgia Power's Directors and Officers. The persons who are
directors and officers of Georgia Power
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 Merger
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
REPRESENTATIONS AND WARRANTIES OF GEORGIA POWER
Georgia Power hereby represents and warrants to Savannah Electric
as
follows:
5.1 Organization and Good Standing. Georgia Power is a corporation
duly
organized, validly existing and in good
standing under the laws of the State of
Georgia.
5.2 Power and Authority. Subject to the approvals set forth in
Article
7 below, Georgia Power has full power and
authority to execute, deliver and
perform this Agreement.
5.3 Authorization. The execution, delivery and performance of
this
Agreement by Georgia Power has been duly
authorized by all requisite corporate
action.
5.4 Binding Effect. This Agreement is a valid, binding and
legal
obligation of Georgia Power enforceable in
accordance with its terms, except for
the effect of bankruptcy, insolvency,
reorganization, receivership, liquidation,
fraudulent conveyance, moratorium or other
similar laws affecting creditors'
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rights generally or general principles of
equity (regardless of whether
enforcement is considered in a proceeding
at law or in equity).
5.5 No Default; Consents. The execution, delivery and
performance of
this Agreement by Georgia Power do not and
will not:
(a) conflict with or result in any breach of any provision of
the Charter or Bylaws of Georgia Power;
(b) violate, breach or otherwise constitute or give rise to a
default under any material contract, commitment or other obligation
to
which Georgia Power is a party or by which any of its assets are
bound;
or
(c) violate or conflict with any law, regulation, judgment,
order or decree of any government, governmental instrumentality
or
court having jurisdiction over Georgia Power or any of its
assets.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SAVANNAH ELECTRIC
Savannah Electric hereby represents and warrants to Georgia Power
as
follows:
6.1 Organization and Good Standing. Savannah Electric is a
corporation
duly organized, validly existing and in
good standing under the laws of the
State of Georgia.
6.2 Power and Authority. Subject to the approvals set forth in
Article
7 below, Savannah Electric has full power
and authority to execute, deliver and
perform this Agreement.
6.3 Authorization. The execution, delivery and performance of
this
Agreement by Savannah Electric has been
duly authorized by all requisite
corporate action.
6.4 Binding Effect. This Agreement is a valid, binding and
legal
obligation of Savannah Electric enforceable
in accordance with its terms, except
for the effect of bankruptcy, insolvency,
reorganization, receivership,
liquidation, fraudulent conveyance,
moratorium or other similar laws affecting
creditors' rights generally or general
principles of equity (regardless of
whether enforcement is considered in a
proceeding at law or in equity).
6.5 No
Default; Consents. The
execution, delivery and performance
of this Agreement by Savannah Electric do
not and will not:
(a) conflict with or result in any breach of any provision of
the Charter or Bylaws of Savannah Electric;
(b) violate, breach or otherwise constitute or give rise to a
default under any material contract, commitment or other obligation
to
which Savannah Electric is a party or by which any of its assets
are
bound; or
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(c) violate or conflict with any law, regulation, judgment,
order or decree of any government, governmental instrumentality
or
court having jurisdiction over Savannah Electric or any of its
assets.
ARTICLE 7
CONDITIONS TO THE MERGER
Completion of the Merger is subject to the satisfaction of the
following conditions:
7.l Shareholder Approval. The principal terms of this Agreement and
the
transactions provided for herein shall have
been approved by holders of capital
stock of each of the Constituent
Corporations as and to the extent required by
their respective organizational documents
and the GBCC.
7.2 Regulatory Approvals. All authorizations by and approvals of
any
governmental or public authority or agency
deemed necessary or advisable by the
Board of Directors of each of Georgia Power
and Savannah Electric in connection
with the Merger and other related
transactions, including, without limitation,
the Georgia Public Service Commission, the
Federal Energy Regulation Commission
and the Federal Communication Commission,
shall have been obtained, shall be in
full force and effect, shall not have been
revoked and shall be legally
sufficient to authorize the transactions
contemplated by this Agreement.
7.3 Listing on NYSE. Georgia Power's 6 1/8% Series Class A
Preferred
Stock shall be approved for listing on the
New York Stock Exchange, subject to
official notice of issuance.
ARTICLE 8
AMENDMENT AND TERMINATION
8.l 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 shareholders of the
Constituent Corporations; provided,
however, that no such amendment,
modification or supplement shall, if agreed
to after such approval by the
pre-Merger shareholders of the Constituent
Corporations, change any of the
principal terms of this Agreement without
further approval of such shareholders.
8.2 Termination. This Agreement may be terminated and the Merger
and
other transactions provided for by this
Agreement may be abandoned at any time
by the mutual written consent of the
parties hereto.
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ARTICLE 9
MISCELLANEOUS
9.l Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of
Georgia.
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IN WITNESS WHEREOF, Georgia Power and Savannah Electric have
each
caused this Agreement to be executed by its
respective officer thereunto duly
authorized as of the date first written
above.
GEORGIA POWER COMPANY
SAVANNAH ELECTRIC AND POWER COMPANY
By: /s/Michael D. Garrett
By: /s/W. Craig
Barrs
Michael D.
Garrett
W. Craig Barrs
President
President
and Chief
Executive Officer
and Chief Executive Officer
Attest:
Attest:
/s/Daniel Lowery
/s/Nancy E. Frankenhauser
Daniel Lowery
Nancy E. Frankenhauser
Corporate Secretary
Comptroller and
Corporate Secretary
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EXHIBIT A
(Form of Amended and Restated Charter of Georgia Power)
A-1
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AMENDED AND RESTATED
CHARTER
OF
GEORGIA POWER COMPANY
-----------------------
I. The name of the corporation is GEORGIA
POWER COMPANY. It is a street and
suburban railroad, electric light and power
and steam heat corporation. Its
charter was granted by the Secretary of
State of the State of Georgia on June
26, 1930, for the term of One Hundred One
Years (101 years), with the right of
renewal and continuance thereafter as may
be provided by law, upon a petition
duly filed and pursuant to an Act of the
General Assembly of the State of
Georgia approved December 17, 1892, and
acts amendatory thereof. It was
organized under the laws of the State of
Georgia for the purpose of operating by
electricity a street railroad, suburban
railroad or interurban railroad and for
the purpose of generating electricity, and
the general nature of the business or
businesses to be transacted shall be to
engage in any form or type of business
for any lawful purpose or purposes not
specifically prohibited to such
corporations under the laws of the State of
Georgia and to have all the rights,
powers, privileges and immunities which are
now or hereafter may be allowed to
such corporations under the laws of the
State of Georgia.
II. The principal office of the corporation
is 241 Ralph McGill Boulevard, NE,
Atlanta, Georgia 30308.
III. The number of shares of capital stock
that may be issued by the corporation
is 90,000,000, of which 5,000,000 shares
shall be preferred stock with a par or
face value of $100 each, 50,000,000 shares
shall be Class A preferred stock with
a par or face value of $25 each, 15,000,000
shares shall be preference stock
with a par or face value of $100 each, and
20,000,000 shares shall be common
stock with no par or face value.
IV. The designations, preferences and
voting powers of the shares of preferred
stock, Class A preferred stock, preference
stock and common stock, or
restrictions or qualifications thereof,
shall be as follows:
Preferred Stock
Provision for Division Into and Issue in Series
of Preferred Stock and Grant of Authority
to Board of Directors
The shares of the preferred stock may be divided into and issued
in
series. Each such series shall be
designated so as to distinguish the shares
thereof from the shares of all other series
and classes, and all shares of the
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preferred stock irrespective of series
shall be identical except as to the
following rights and preferences in respect
of any or all of which there may be
variations between different series, and
authority is hereby expressly vested in
the Board of Directors to establish and
designate such series and to determine
prior to the issuance of any shares of such
series the following rights and
preferences of the shares thereof in
accordance with the provisions of the
Official Code of Georgia Annotated
applicable thereto:
(a) The dividend rights of such series, including the cumulative
or
non-cumulative nature thereof, the relative
rights of priority among series, the
rate of dividend (which may be fixed or
variable), the dividend payment dates
and the date from which dividends will
accumulate, if applicable;
(b) The date, prices and other terms of any mandatory or
optional
redemption;
(c) The amount payable upon shares in the event of any voluntary
or
involuntary liquidation;
(d) The terms and conditions, if any, on which shares of such
series
shall be by their terms convertible into or
exchangeable for shares of any other
class of stock of the corporation over
which the preferred stock has preference
as to payment of dividends and as to
assets;
(e) The sinking fund provisions, if any, for the redemption or
purchase
of shares of such series; and
(f) The special voting rights, if any, of such series.
The stockholders of the corporation, by resolution duly adopted by
the
holders of a majority of the shares of the
issued and outstanding common stock
at any annual meeting or any special
meeting called for that purpose, or, if
permitted by the laws of the State of
Georgia then applicable, the Board of
Directors may issue and sell all the
authorized and unissued shares of preferred
stock as shares of any series or any number
of series, and in the event that the
corporation shall acquire, by purchase or
redemption or otherwise, any issued
shares of its preferred stock of any
series, the holders of a majority of the
outstanding common stock, or, if permitted
by the laws of the State of Georgia
then applicable, the Board of Directors may
resell or convert and sell or
otherwise dispose of, in their discretion,
any shares so acquired as shares of
the same or of any other series of
preferred stock which shall have been duly
created.
Provision for Division Into and Issue in Series
of Class A Preferred Stock and Grant of Authority
to Board of Directors
The shares of the Class A preferred stock may be divided into
and
issued in series. Each such series shall be
designated so as to distinguish the
shares thereof from the shares of all other
series and classes, and all shares
of the Class A preferred stock irrespective
of series shall be identical except
as to the following rights and preferences
in respect of any or all of which
there may be variations between different
series, and authority is hereby
expressly vested in the Board of Directors
to establish and designate such
series and to determine prior to the
issuance of any shares of such series the
following rights and preferences of the
shares thereof in accordance with the
provisions of the Official Code of Georgia
Annotated applicable thereto:
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(a) The dividend rights of such series, including the cumulative
or
non-cumulative nature thereof, the relative
rights of priority among series, the
rate of dividend (which may be fixed or
variable), the dividend payment dates
and the date from which dividends will
accumulate, if applicable;
(b) The date, prices and other terms of any mandatory or
optional
redemption;
(c) The amount payable upon shares in the event of any voluntary
or
involuntary liquidation;
(d) The terms and conditions, if any, on which shares of such
series
shall be by their terms convertible into or
exchangeable for shares of any other
class of stock of the corporation over
which the Class A preferred stock has
preference as to payment of dividends and
as to assets;
(e) The sinking fund provisions, if any, for the redemption or
purchase
of shares of such series; and
(f) The special voting rights, if any, of such series.
The stockholders of the corporation, by resolution duly adopted by
the
holders of a majority of the shares of the
issued and outstanding common stock
at any annual meeting or any special
meeting called for that purpose, or, if
permitted by the laws of the State of
Georgia then applicable, the Board of
Directors may issue and sell all the
authorized and unissued shares of Class A
preferred stock as shares of any series or
any number of series, and in the
event that the corporation shall acquire,
by purchase or redemption or
otherwise, any issued shares of its Class A
preferred stock of any series, the
holders of a majority of the outstanding
common stock, or, if permitted by the
laws of the State of Georgia then
applicable, the Board of Directors may resell
or convert and sell or otherwise dispose
of, in their discretion, any shares so
acquired as shares of the same or of any
other series of Class A preferred stock
which shall have been duly created.
General Provisions Applicable to
Preferred Stock and Class A Preferred Stock
The following provisions shall apply to all series of preferred
stock
and Class A preferred stock which may now
or hereafter be authorized or created
irrespective of series:
(A) So long as any shares of preferred stock or Class A preferred
stock
are outstanding, no dividends shall be
declared or paid upon or set apart for
the shares of common stock, preference
stock or any other class of stock of the
corporation over which the preferred stock
and Class A preferred stock have
preference as to the payment of dividends
(the "Junior Stock"), nor any sums
applied to the purchase, redemption or
other retirement of any class of Junior
Stock, unless (i) full dividends on all
shares of cumulative preferred stock and
cumulative Class A preferred stock, of all
series outstanding, for all past
dividend periods shall have been paid or
declared and a sum sufficient for the
payment thereof set apart and the full
dividend for the then current dividend
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period shall have been or concurrently
shall be declared, and (ii) full
dividends for the then-current dividend
period on all shares of non-cumulative
preferred stock and non-cumulative Class A
preferred stock, of all series
outstanding, have been, or
contemporaneously are, paid, or declared and a sum
sufficient for the payment thereof set
aside. Unpaid accrued dividends on the
preferred stock and Class A preferred stock
shall not bear interest.
When specified dividends are not paid in full on all series of
preferred stock and Class A preferred
stock, the shares of each series of
preferred stock and Class A preferred stock
shall share ratably in any partial
payment of dividends in accordance with the
sums which would be payable on said
shares if all dividends were paid in full;
provided, however, that
non-cumulative preferred stock and
non-cumulative Class A preferred stock shall
not share in accumulations of accrued and
unpaid dividends for prior dividend
periods unless previously declared.
(B) After such dividends as aforesaid upon the preferred stock
and
Class A preferred stock of all series then
outstanding shall have been paid or
declared and set apart for payment, the
Board of Directors may declare dividends
on the Junior Stock, and no holders of any
series of the preferred stock or
Class A preferred stock as such shall be
entitled to share therein.
(C) Upon any dissolution, liquidation or winding up of the
corporation,
whether voluntary or involuntary, the
holders of preferred stock and Class A
preferred stock of each series, without any
preference of the shares of any
series of preferred stock or Class A
preferred stock over the shares of any
other series of preferred stock or Class A
preferred stock, shall be entitled to
receive out of the assets of the
corporation, whether capital, surplus or other,
before any distribution of the assets to be
distributed shall be made to the
holders of Junior Stock, the amount
specified to be payable on the shares of
such series in the event of voluntary or
involuntary liquidation, as the case
may be. In case the assets shall not be
sufficient to pay in full the amounts
determined to be payable on all the shares
of preferred stock and Class A
preferred stock in the event of voluntary
or involuntary liquidation, as the
case may be, then the assets available for
such payment shall be distributed to
the extent available as follows: first, to
the payment, pro rata, of the amount
payable in the event of involuntary
liquidation on each share of preferred stock
and Class A preferred stock outstanding
irrespective of series; second, to the
payment of the accrued dividends, if any,
on such shares, such payment to be
made pro rata in accordance with the amount
of accrued dividends on each such
share; and, third, to the payment of any
amounts in excess of the amount payable
in the event of involuntary liquidation on
each share plus accrued dividends
which may be payable on the shares of any
series in the event of voluntary or
involuntary liquidation, as the case may
be, such payment also to be made pro
rata in accordance with the amounts, if
any, so payable on each such share.
After payment to the holders of the
preferred stock and Class A preferred stock
of the full preferential amounts
hereinbefore provided for, the holders of the
preferred stock and Class A preferred stock
as such shall have no right or claim
to any of the remaining assets of the
corporation, either upon any distribution
of such assets or upon dissolution,
liquidation or winding up, and the remaining
assets to be distributed, if any, upon a
distribution of such assets
