EXHIBIT 2.1
Form of Merger Agreement - Delaware Entity
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "Agreement"), dated as of _______, 2004, by
and among ______________, a Delaware limited liability company (the "Company"),
Great Wolf Resorts, Inc., a Delaware corporation ("GWR"), and ____________, a
Delaware limited liability company that is a wholly owned indirect subsidiary of
GWR ("Merger Sub");
W I T N E S S E T H:
WHEREAS, the parties hereto desire that Merger Sub be merged with and into
the Company on the terms and subject to the conditions set forth in this
Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
conditions and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1. Merger. Subject to the terms and conditions of this Agreement, at
the Effective Time (as defined in this Agreement), Merger Sub shall be merged
with and into the Company (the "Merger") pursuant to Section 18-209 of the
Delaware Limited Liability Company Act (the "Act").
1.2. Effects of the Merger. The Merger shall have the effects set forth
in Section 18-209 of the Act.
1.3. Effective Time. The Merger shall become effective upon the filing by
the Company of a certificate of merger with the Secretary of State of the State
of Delaware, or at such future time or date as is specified in such certificate
of merger, in accordance with Section 18-209 of the Act (the "Effective Time").
1.4. Surviving Limited Liability Company. The Company shall be the
surviving limited liability company in the Merger and shall continue to be
governed by the Act.
1.5. Conversion of Interests. At the Effective Time, by virtue of the
Merger and without any further action on the part of the Company, the members of
the Company, GWR or Merger Sub, (a) the interest in the Company of each member
of the Company shall be converted into the right to receive from GWR the amount
of cash and/or into the number of shares of the common stock, par value $0.01
per share, of GWR (the "Common Stock"), shown for such
member on Exhibit A to this Agreement, except that any interest in the Company
held directly or indirectly by GWR shall not be converted in the Merger and
shall remain outstanding, and (b) the entire interest in Merger Sub shall be
converted into an interest in the Company that is equivalent in the aggregate to
the interests in the Company that are converted pursuant to the foregoing clause
(a).
1.6. Distribution of Cash and Certificates for Shares of Common Stock.
Promptly after the Effective Time, a distribution agent appointed by GWR shall
distribute checks in the amounts of the cash, and certificates representing the
shares of the Common Stock, to which former members of the Company are entitled
as contemplated by Section 1.5.
1.7. Withholding With Respect to Members. Notwithstanding any provision
hereof to the contrary, GWR shall be authorized to withhold cash and shares of
Common Stock otherwise payable and issuable to any member of the Company to the
extent necessary to comply with any applicable withholding requirements imposed
under Section 1445 of the Internal Revenue Code (with respect to any non-U.S.
member) or with any other withholding obligations imposed on GWR or the Company
by applicable federal or state law (with respect to any member).
1.8. Tax Treatment of Merger. For all relevant federal, state and local
income tax purposes, the Merger shall be treated by the Company's members (other
than GWR) as a transfer by the members of their interests in the Company to GWR
in exchange for the cash and/or shares of GWR stock into which such interests
are converted in the Merger, but shall be treated by GWR as if GWR had acquired
the assets of the Company, subject to the Company's liabilities, in exchange for
such consideration.
ARTICLE II
MISCELLANEOUS
2.1. Amendment. This Agreement may be supplemented, amended or modified
by the parties hereto at any time prior to the Effective Time. This Agreement
may not be amended except by an instrument in writing signed by the parties
hereto.
2.2. Waiver. At any time prior to the Effective Time, the parties hereto
may waive compliance with any of the agreements or conditions contained herein.
2.3. Notices. All notices and other communications to be given or made
hereunder by any party shall be delivered by first class mail, or by personal
delivery, postage or fees prepaid, to the other parties at The Great Lakes
Companies, Inc., 000 Xxxx Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxxx
00000.
2.4. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
2.5. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party.
2.6. Remedies. Except as otherwise expressly provided herein, this
Agreement is not intended to confer upon any person not a party to any rights or
remedies hereunder.
2.7. Assignment. This Agreement shall not be assigned by operation of law
or otherwise without the consent of all parties hereto.
2.8. No Implied Waiver. Except as expressly provided in this Agreement,
no course of dealing among the parties hereto and no delay by any of them in
exercising any right, power or remedy conferred herein or now or hereafter
existing at law or in equity, by statute or otherwise, shall operate as a waiver
of, or otherwise prejudice, any such right, power or remedy.
2.9. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (regardless of the laws that
might otherwise govern under applicable principles of conflicts of law) as to
all matters, including, but not limited to, matters of validity, construction,
effect, performance and remedies.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
[COMPANY]
By: ___________________________________
Name: _____________________________
Title: ____________________________
__________________________________, LLC
By: ___________________________________
Name: _____________________________
Title: ____________________________
GREAT WOLF RESORTS, INC.
By: ___________________________________
Name: _____________________________
Title: ____________________________
EXHIBIT A
NUMBER OF SHARES
MEMBER CASH AMOUNT OF COMMON STOCK
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