This PLAN OF
MERGER, dated as of June 30, 2009 (the “Plan”), is
entered into by and among Otter Tail Corporation, a Minnesota
corporation (“Otter Tail” and after the Effective Time,
the “Surviving Corporation”), Otter Tail Holding
Company, a Minnesota corporation and the direct subsidiary of Otter
Tail (“OT Holding”), and Otter Tail Merger Sub Inc., a
Minnesota corporation and indirect subsidiary of Otter Tail and
direct subsidiary of OT Holding (“Merger
Sub”).
WHEREAS, the
authorized capital stock of Otter Tail consists of:
(a) 50,000,000
Common Shares of the par value of $5 per share (“Otter Tail
Common Shares”), of which 35,493,054 shares were issued and
outstanding as of June 1, 2009;
(b) 1,500,000
Cumulative Preferred Shares without par value (“Otter Tail
Cumulative Preferred Shares”), of which (i) 60,000 have
been designated as Otter Tail’s $3.60 Cumulative Preferred
Shares (“Otter Tail $3.60 Cumulative Preferred Shares),
60,000 of which were issued and outstanding as of June 1,
2009, (ii) 25,000 have been designated as Otter Tail’s
$4.40 Cumulative Preferred Shares (“Otter Tail $4.40
Cumulative Preferred Shares”), 25,000 of which were issued
and outstanding as of June 1, 2009, (iii) 30,000 have
been designated as Otter Tail’s $4.65 Cumulative Preferred
Shares (“Otter Tail $4.65 Cumulative Preferred Shares),
30,000 of which were issued and outstanding as of June 1,
2009, and (iv) 40,000 have been designated as Otter Tail’s
$6.75 Cumulative Preferred Shares (the “$6.75 Otter Tail
Cumulative Preferred Shares”), 40,000 of which were issued
and outstanding as of June 1, 2009; and
(c) 1,000,000
Cumulative Preference Shares without par value (the “Otter
Tail Cumulative Preference Shares”), none of which are
currently outstanding.
WHEREAS, OT
Holding is and, at all times since its organization, has been a
direct, wholly owned subsidiary of Otter Tail with authorized
capital stock consisting of:
(a) 50,000,000
Common Shares of the par value of $5 per share (“OT Holding
Common Shares”), of which 100 shares are currently issued and
outstanding;
(b) 1,500,000
Cumulative Preferred Shares without par value (“OT Holding
Cumulative Preferred Shares”), of which (i) 60,000 have
been designated as OT Holding’s $3.60 Cumulative Preferred
Shares (“OT Holding $3.60 Cumulative Preferred Shares),
(ii) 25,000 have been designated as OT Holding’s $4.40
Cumulative Preferred Shares (“OT Holding $4.40 Cumulative
Preferred Shares”), (iii) 30,000 have been designated as
OT Holding’s $4.65 Cumulative Preferred Shares (“OT
Holding $4.65 Cumulative Preferred Shares), and (iv) 40,000
have been designated as OT Holding’s $6.75 Cumulative
Preferred Shares (the “OT Holding $6.75 Cumulative Preferred
Shares”); none of which were issued and outstanding as of
June 1, 2009; and
(c) 1,000,000
Cumulative Preference Shares without par value (the “OT
Holding Cumulative Preference Shares”), none of which are
currently issued and outstanding.
WHEREAS, the
designations, rights and preferences, and the qualifications,
limitations and restrictions thereof, of the OT Holding Common
Shares, the OT Holding Cumulative Preference Shares and each series
of OT Holding Cumulative Preferred Shares, are the same as those of
the Otter Tail Common Shares, the Otter Tail Cumulative Preference
Shares, and the corresponding series of Otter Tail Cumulative
Preffered Shares, respectively.
WHEREAS, the
Articles of Incorporation and the Bylaws of OT Holding immediately
after the Effective Time (as hereinafter defined) will contain
provisions identical to the Articles of Incorporation and Bylaws of
Otter Tail immediately before the Effective Time (other than, as
allowed by Section 302A.626 (subd. 7) of the Minnesota
Business Corporation Act, as amended (the
“MBCA”)).
WHEREAS, Merger
Sub is a wholly owned subsidiary of OT Holding with authorized
capital stock consisting of 1,000 shares of common stock, par value
$5 per share (“Merger Sub Common Shares”), of which 100
shares are currently issued and outstanding.
WHEREAS, the Board
of Directors of each of Otter Tail, OT Holding and Merger Sub has
determined that it is desirable and in the best interests of Otter
Tail, OT Holding and Merger Sub, respectively, that Otter Tail and
Merger Sub should merge, Otter Tail shall be the surviving
corporation, and OT Holding shall be a “holding
company” of Otter Tail, as such term is defined in
Section 302A.626 (subd. 1)(b) of the MBCA.
NOW, THEREFORE,
the parties hereby prescribe the terms and conditions of the merger
and the mode of carrying the same into effect as
follows:
1. Merger
of Otter Tail with Merger Sub. At the Effective Time, Otter
Tail shall merge with Merger Sub (the “Merger”) in
accordance with Section 302A.626 (subd. 3) of the MBCA, and
the separate existence of Merger Sub shall cease and Otter Tail
shall be a direct, wholly owned subsidiary of OT Holding. Otter
Tail shall be the surviving corporation and assume all of the
rights, privileges, assets and liabilities of Merger Sub. Merger
Sub and Otter Tail are the only constituent corporations to the
Merger.
2. Name
of Surviving Corporation . The name of the surviving
corporation shall be “Otter Tail Power
Company”.
3. Effect
of the Merger . The effect of the Merger shall be as
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