American States Water Co – ‘8-K’ for 7/1/98 – EX-2.1

As of:  Wednesday, 7/1/98   ·   For:  7/1/98   ·   Accession #:  902595-98-126   ·   File #:  333-47647

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Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                         4     13K 
 2: EX-2.1      Agreement of Merger                                    6±    24K 
 3: EX-99.1     Press Release                                          1      7K 

EX-2.1   —   Agreement of Merger

EX-2.1
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                           Exhibit 2.1

THIS AGREEMENT OF MERGER (this "Agreement") is made as of               
June 25, 1998 by and among SOUTHERN CALIFORNIA WATER COMPANY, a                 
California corporation ("SCW"), SCW ACQUISITION CORP., a                        
California corporation ("MergeCo"), and AMERICAN STATES WATER                   
COMPANY, ("HoldingCo"), a California corporation, with reference                
to the following facts:                                                         

A.   SCW has authorized capital consisting of (i) 30,000,000          
shares of Common Stock, with par value of $2.50 per         
share ("SCW Common Stock"), of which 8,957,671 shares       
have been issued and are outstanding; (ii) 83,200           
shares of Preferred Stock (the "SCW Preferred Stock"),      
with par value of $25.00 per share, of which 32,000         
shares of the 4% Series have been issued and are            
outstanding, 32,000 shares of the 4 1/4% Series have        
been issued and are outstanding, and 19,200 of the 5%       
Series have been issued and are outstanding; and (iii)      
150,000 shares of Preferred Stock, with a Par Value of      
$100 per share, none of which have been issued.             

B.   MergeCo has authorized capital consisting of 1,000               
shares of Common Stock, with no par value per share         
("MergeCo Common Stock"), 100 shares of which have been     
issued and are outstanding and are beneficially             
owned of record by HoldingCo.                               

C.   HoldingCo has authorized capital consisting of (i)               
30,000,000 shares of Common Stock, no par value and a       
stated value of $2.50 per share ("HoldingCo Common          
Stock"), of which 100 shares are issued and                 
outstanding and beneficially owned of record by SCW,        
(ii) 83,200 shares of Preferred Stock (the "HoldingCo       
Preferred Stock"), with par value of $25.00 per share,      
of which 32,000 shares are of the 4% Series, 32,000         
shares are of the 4 1/4% Series, and 19,200 shares are      
of the 5% Series, and none of which shares have been        
issued or are outstanding; and (iii) 150,000 shares of      
New Preferred Stock, with no par value and a stated         
value of $100 per share, none of which have been issued     
or are outstanding.                                         

D.  The Boards of Directors of the respective parties               
hereto deem it advisable to merge MergeCo with and into     
SCW in accordance with the California General               
Corporation Law (the "CGCL") and this Agreement for         
the purpose of establishing HoldingCo as the parent         
corporation of SCW in a transaction intended to qualify     
as a reorganization within the meaning of Section 368       
of the Internal Revenue Code of 1986, as amended.           

NOW, THEREFORE, in consideration of the premises and                  
agreements contained herein, the parties agree that (i) MergeCo                 
shall be merged with and into SCW, (ii) SCW shall be the                        
corporation surviving such merger, and (iii) the terms and                      
conditions of such 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    The Merger.  Upon the terms and subject to the           
conditions set forth in this Agreement, and in accordance with                  
the CGCL, MergeCo shall be merged (the "Merger") with and into                  
SCW at the Effective Time (as defined below). Following the                     
Merger, the separate corporate existence of MergeCo shall cease                 
and SCW shall continue as the surviving corporation (SCW, as the                
surviving corporation, being sometimes referred to herein as the                
"Surviving Corporation"), and shall succeed to and assume all the               
rights and obligations of SCW and of MergeCo in accordance with                 
the CGCL.                                                                       

1.2     Closing.  The closing of the Merger shall take          
place at 10:00 a.m. on a date specified by the parties (the                     
"Closing Date"), at the offices of O'Melveny & Myers LLP, 400                   
South Hope Street, Los Angeles, California 90071.                               

1.3     Effective Time.  Subject to the provisions of           
this Agreement, on the Closing Date the parties shall file with                 
the California Secretary of State (i) a copy of this Agreement                  
of Merger, (ii) an officer's certificate for each of MergeCo and                
SCW, and (iii) a certificate of satisfaction of the California                  
Franchise Tax Board for MergeCo, all as required by Section 1103                
of the CGCL (such documents, the "Merger Documents"), and shall                 
make all other filings or recordings required under the CGCL. The               
Merger shall become effective at 12:01 a.m., July 1, 1998 (such                 
date and time being the "Effective Time").                                      

1.4     Effects of the Merger.  The Merger shall have the       
effects set forth in Section 1107 of the CGCL and all other                     
effects specified in the applicable provisions of the CGCL.                     

ARTICLE 2         

TERMS OF CONVERSION AND EXCHANGE OF SHARES              

At the Effective Time:                                          

2.1     SCW Common Stock.  Each share of SCW Common Stock       
or fraction thereof issued and outstanding immediately prior to                 
the Merger shall be automatically changed and converted into one                
share of HoldingCo Common Stock or fraction thereof, which shall                
thereupon be issued and fully-paid and non-assessable.                          

2.2     SCW Preferred Stock.  Each share of each series         
of SCW Preferred Stock issued and outstanding immediately prior                 
to the Merger shall be automatically changed and converted into                 
the same number of shares of the same series of HoldingCo                       
Preferred Stock, which shall thereupon be issued and fully-paid                 
and non-assessable.                                                             

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                 
non-assessable, 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 MergeCo Common Stock immediately prior to the Effective Time.                

2.4     HoldingCo Shares.  Each share of HoldingCo Common       
Stock owned or held by SCW immediately prior to the Merger shall                
be canceled.                                                                    

ARTICLE 3                     

ARTICLES OF INCORPORATION AND BYLAWS                

3.1     Articles of Incorporation.  Upon the Effective          
Time and until amended or modified in accordance therewith or                   
pursuant to applicable law, the articles of incorporation set                   
forth as Appendix A hereto shall be the articles of incorporation               
of Surviving Corporation.                                                       

3.2     Bylaws.  Upon the Effective Time and until              
amended or modified in accordance therewith pursuant to                         
applicable law, the bylaws of SCW in effect on the effective time               
shall be the bylaws of Surviving Corporation.                                   

ARTICLE 4             

DIRECTORS AND OFFICERS              

4.1     Directors and Officers.  The persons who are            
directors and officers of SCW 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 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 SCW Common Share Certificates and SCW        
Preferred Shares Certificates. Following the Effective Time, each               
holder of an outstanding certificate or certificates theretofore                
representing SCW Common Shares or SCW Preferred Shares, as the                  
case may be, may, but shall not be required to, surrender the                   
same to HoldingCo for cancellation or transfer, and thereupon                   
each such holder or transferee will be entitled to receive a                    
certificate or certificates representing the same number of                     
shares of Holding Common Shares or series of HoldingCo Preferred                
Shares, as the case may be, as the SCW Common Shares or series of               
SCW Preferred Shares previously represented by the stock                        
certificate(s) so surrendered.                                                  

5.2     Outstanding Certificates.  Until surrendered or         
presented for transfer in accordance with Section 5.1 above, each               
outstanding stock certificate which, prior to the Effective Time,               
represented SCW Common Shares or a series of SCW Preferred                      
Shares, as the case may be, shall be deemed and treated for all                 
corporate purposes to represent the ownership of the same number                
of shares of HoldingCo Common Shares or series of HoldingCo                     
Preferred Shares, as the case my be, as though such surrender or                
transfer and exchange and taken place.                                          

5.3     SCW Stock Transfer Books.  The stock transfer           
books for SCW Common Shares and each series of SCW Preferred                    
Shares shall be deemed to be closed at the Effective Time such                  
that no transfer of SCW Common Shares or any series of SCW                      
Preferred Shares shall thereafter be made on such books.                        

5.4    Post-Merger Rights of Holders.  Following the            
Effective Time, the holders of certificates representing SCW                    
Common Shares and each series of SCW Preferred Shares 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 HoldingCo Common                 
Shares or series of HoldingCo Preferred Shares, respectively,                   
into which their SCW Common shares or series of SCW Preferred                   
Shares shall have been converted in connection with the Merger.                 

ARTICLE 6                     

CONDITIONS OF THE MERGER                  

Completion of the Merger is subject to the satisfaction of            
the following conditions:                                                       

6.1     SCW Shareholder Approval.  The principal terms of       
this Agreement shall have been approved by shares constituting a                
majority of the combined voting power of the outstanding Common                 
Shares and Preferred Shares. Each outstanding Common Share shall                
be entitled to one-tenth of a vote and each outstanding Preferred               
Share shall be entitled to one vote.                                            

6.2     HoldingCo Common Stock Listed.  The HoldingCo           
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.                    

6.3    CPUC Approval.  The California Public Utilities          
Commission shall have approved the formation of a holding company               
structure for SCW pursuant to this agreement of merger in a form                
substantially similar to the Agreement, subject only to                         
conditions deemed reasonable by the Board of Directors of SCW.                  

6.4     Tax Opinion.  The Company shall have received           
from O'Melveny & Myers LLP an opinion to the effect that the                    
Merger will constitute a tax-free reorganization for federal                    
income tax purposes.                                                            

ARTICLE 7                   

AMENDMENT AND TERMINATION                   

7.1     Amendment.  Subject to applicable law, 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-Merger shareholders of SCW (as provided in Section 6.1                      
above).                                                                         

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 SCW,               
by action of the board of directors of SCW 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 SCW or its                          
shareholders.                                                                   

ARTICLE 8                           

MISCELLANEOUS                           

8.1     Approval of HoldingCo Shares.  By its execution         
and delivery of this Agreement, SCW, as the sole pre-Merger                     
shareholder of HoldingCo, consents to, approves and adopts this                 
Agreement and approves the Merger, subject to approval of this                  
Agreement by the pre-Merger shareholders of SCW and the                         
satisfaction of all other conditions specified in Article 6                     
above.                                                                          

8.2     Approval of MergeCo Shares.  By its execution and       
delivery of this Agreement, HoldingCo, 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 SCW and the                         
satisfaction of all other conditions specified in Article 6                     
above.                                                                          

EX-2.1
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IN WITNESS WHEREOF, SCW, HoldingCo 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.                                               

SOUTHERN CALIFORNIA WATER COMPANY,      
a California corporation                

By: /s/ Floyd E. Wicks                  
---------------------------     
Name:  Floyd E. Wicks                   
Title:  President                       

By:  /s/ McClellan Harris III           
__________________________    
Name:  McClellan Harris III             
Title:  Secretary                       

AMERICAN STATES WATER COMPANY,          
a California corporation                

By:  /s/ Floyd E. Wicks                 
--------------------------    
Name:  Floyd E. Wicks                   
Title:  President                       

By:  /s/ McClellan Harris III           
--------------------------    
Name:  McClellan Harris III             
Title:  Secretary                       

SCW ACQUISITION CORP.,                  
a California corporation                

By:  /s/ Floyd E. Wicks                 
-------------------------     
Name:  Floyd E. Wicks                   
Title:  President                       

By:  /s/ McClellan Harris III           
--------------------------    
Name:  McClellan Harris III             
Title:  Secretary                       

Dates Referenced Herein

				Referenced-On Page
This ‘8-K’ Filing		Date		First		Last			Other Filings
Filed on / For Period End:		7/1/98		1					None on these Dates
		6/25/98		1
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