EXHIBIT 2.1
FORM
OF
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of
_____________ __, 1999, is made by and between Green Mountain Energy Resources
L.L.C., a Delaware limited liability company (the "LLC"), and XxxxxXxxxxxxx.xxx
Company, a Delaware corporation (the "Corporation").
RECITALS
--------
A. In accordance with the LLC's limited liability company agreement, the
management committee of the LLC has duly adopted a resolution approving this
Agreement and the Merger, thereby satisfying the applicable approval
requirements under Section 18-209 of the Delaware Limited Liability Company Act
(the "DLLCA").
B. The board of directors of the Corporation has duly adopted a
resolution approving this Agreement and declaring its advisability, thereby
satisfying the applicable approval requirements under Section 264 and 251 of the
Delaware General Corporation Law (the "DGCL").
C. No shares of stock of the Corporation were issued prior to the
adoption by the board of directors of the Corporation of the resolution
approving this Agreement and, accordingly, under Sections 264 and 251 of the
DGCL no vote of stockholders of the Corporation is necessary to authorize the
Merger.
AGREEMENTS
----------
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
I. The Merger
----------
1.1 Merger. At the Effective Time (as defined below), the LLC shall be
------
merged with and into the Corporation (the "Merger") in accordance with the
applicable provisions of the DLLCA and the DGCL, and separate existence of the
LLC will thereupon cease. The Corporation shall be the surviving entity in the
Merger (as such, the "Surviving Entity"). The Merger shall have the effects
specified in the DLLCA and the DGCL.
1.2 Effective Time. The LLC and the Corporation shall cause this
--------------
Agreement to be filed with the Secretary of State of the State of Delaware in
accordance with Section 18-209 of the DLLCA and Sections 251 and 264 of the DGCL
at such time as they shall mutually agree. Upon the completion of the filing,
the Merger shall become effective in accordance with the DLLCA and the DGCL.
The time and date on which the Merger becomes effective is herein referred to as
the "Effective Time."
1.3 Governing Documents of the Surviving Entity. (a) At the Effective
-------------------------------------------
Time, the certificate of incorporation of the Corporation as in effect
immediately prior to the Effective Time shall be amended and restated in its
entirety to read as set forth in Exhibit A hereto. The certificate of
---------
incorporation, as so amended and restated, shall be the certificate of
incorporation of the Surviving Entity from and after the Effective Time until
amended in accordance with its terms and the DGCL.
(b) The bylaws of the Corporation as in effect immediately prior to the
Effective Time shall be the bylaws of the Surviving Entity from and after the
Effective Time until amended in accordance with their terms and the DGCL.
1.4 Directors and Officers of the Surviving Entity. (a) The members of
----------------------------------------------
the board of directors of the Corporation immediately prior to the Effective
Time shall be the members of the board of directors of the Surviving Entity and
shall continue to serve as members of the board of directors of the Surviving
Entity until their respective successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the certificate of incorporation or bylaws of the Surviving Entity.
(b) The officers of the Corporation immediately prior to the Effective
Time shall be the officers of the Surviving Entity and shall continue to serve
as officers of the Surviving Entity until their respective successors have been
appointed and qualified or until their earlier death, resignation or removal in
accordance with the certificate of incorporation and bylaws of the Surviving
Entity.
II. Effect of Merger on Securities
------------------------------
2.1 Conversion of Units. At the Effective Time, each common unit in the
-------------------
LLC (each, a "Unit") outstanding immediately prior to the Effective Time shall,
by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive ___ shares of fully paid and
nonassessable common stock, par value $0.01 per share, of the Corporation
("Common Stock") upon surrender of the certificate formerly representing such
Unit in accordance with this Agreement.
2.2 Options to Purchase Units. At the Effective Time, each then-
-------------------------
outstanding option to purchase Units (each, an "Option"), whether or not then
exercisable or fully vested, shall be assumed by the Corporation and shall
constitute an option to acquire, on substantially the same terms and subject to
substantially the same conditions as were applicable under such Option
immediately prior to the Effective Time, the number of shares of Common Stock,
rounded down to the nearest whole share, determined by multiplying the number of
Units subject to such Option immediately prior to the Effective Time by ___ (the
"Conversion Factor"), at an exercise price per share of Common Stock (increased
to the nearest whole cent) equal to the exercise price per Unit of Units subject
to such Option divided by the Conversion Factor.
2.3 Warrants to Purchase Units. From and after the Effective Time, the
--------------------------
holder of any warrant to purchase Units outstanding at the Effective Time (each,
a "Warrant") shall have the right until the expiration date thereof to exercise
such Warrant for the number of whole shares of
2
Common Stock receivable pursuant to Section 2.1 hereof (and cash in lieu of
fractional shares, if any, receivable pursuant to Section 3.4 hereof) by a
holder of the number of Units for which such Warrant might have been exercised
immediately prior to the Effective Time.
2.4 No Shares of the Corporation Outstanding. There will be no shares of
----------------------------------------
stock of the Corporation outstanding immediately prior to the Effective Time.
III. Exchange of Certificates
------------------------
3.1 Letters of Transmittal; Surrender of Certificates. The Corporation
-------------------------------------------------
shall provide to each holder of record of a certificate or certificates that,
immediately prior to the Effective Time, evidenced outstanding Units (the
"Certificates") a form of letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to the Corporation, and
shall be in such form and have such other provisions as the Corporation may
specify), together with related instructions, for use in effecting the surrender
of the Certificates in exchange for shares of Common Stock as contemplated by
Section 2.1 hereof (and cash in lieu of fractional shares, if any, as
contemplated by Section 3.4 hereof). Upon surrender of a Certificate for
cancellation to the Corporation (or an exchange agent designated by the
Corporation), together with a duly executed letter of transmittal and such other
customary documents as may be required pursuant to such instructions, the holder
of such Certificate shall be entitled to receive in exchange therefor a
certificate representing the number of whole shares of Common Stock that the
aggregate number of Units previously represented by such Certificate shall have
been converted into the right to receive pursuant to Section 2.1 hereof (and
cash in lieu of fractional shares, if any, as contemplated by Section 3.4
hereof), and the Certificate so surrendered shall forthwith be canceled.
3.2 Cancellation of Units; No Further Rights. As of the Effective Time,
----------------------------------------
all Units issued and outstanding immediately prior to the Effective Time shall
cease to be outstanding, shall automatically be canceled and shall cease to
exist, and each holder of a Certificate theretofore representing any such Units
shall cease to have any rights with respect thereto, except the right to receive
shares of Common Stock (and cash in lieu of fractional shares, if any) upon
surrender of such Certificate in accordance with Section 3.1 hereof, and until
so surrendered, each such Certificate shall represent for all purposes only the
right to receive shares of Common Stock (and cash in lieu of fractional shares,
if any) as provided in this Agreement. The shares of Common Stock (and any cash
in lieu of fractional shares) delivered upon the surrender for exchange of
Certificates in accordance with the terms of this Article III shall be deemed to
have been delivered in full satisfaction of all rights pertaining to the Units
theretofore represented by such Certificates.
3.3 Distributions with Respect to Unexchanged Units. No dividends or
-----------------------------------------------
other distributions with respect to Common Stock with a record date after the
Effective Time shall be paid to the holder of any unsurrendered Certificate with
respect to the shares of Common Stock issuable upon the surrender of such
Certificate pursuant to Section 3.1, and no cash payment in lieu of fractional
shares shall be paid to any such holder pursuant to Section 3.4, until the
surrender of such Certificate pursuant to Section 3.1. Subject to the effect of
applicable escheat or similar laws, following the surrender of any such
Certificate pursuant to Section 3.1 there shall be paid to the holder of the
certificate representing the whole shares of Common Stock issued in
3
exchange therefor, without interest, (a) at the time of such surrender, the
amount of dividends or other distributions with respect to such whole shares of
Common Stock with a record date after the Effective Time that would have been
paid with respect to such whole shares of Common Stock had those shares been
issued and outstanding as of such record date, and the amount of any cash
payable in lieu of a fractional share of Common Stock to which such holder is
entitled pursuant to Section 3.4, and (b) at the appropriate payment date, the
amount of dividends or other distributions with respect to such whole shares of
Common Stock with a record date after the Effective Time but prior to such
surrender and with a payment date subsequent to such surrender that would have
been payable with respect to such whole shares of Common Stock had those shares
been issued and outstanding as of such record date.
3.4 No Fractional Shares. (a) No certificates or scrip representing
--------------------
fractional shares of Common Stock shall be issued upon the surrender for
exchange of Certificates which have been converted pursuant to Section 2.1
hereof, and such fractional share interests shall not entitle the owner thereof
to vote or to any rights of a stockholder of the Corporation.
(b) In lieu of any such fractional shares, each holder of Units who would
otherwise have been entitled to a fraction of a share of Common Stock upon
surrender of Certificates for exchange pursuant to this Article III shall be
paid an amount in cash (without interest), rounded to the nearest cent,
determined by multiplying (i) $__________ by (ii) the fractional interest to
which such holder otherwise would be entitled.
IV. Miscellaneous
-------------
4.1 Termination. This Agreement may be terminated at any time prior to
-----------
the Effective Time by mutual agreement of the LLC and the Corporation,
notwithstanding any prior approvals.
4.2 Registration Rights Agreement. At or prior to the Effective Time, the
-----------------------------
Corporation shall execute a Registration Rights Agreement in such form as the
Corporation may determine, pursuant to which each holder of record of
Certificates, upon such holder's surrender thereof in accordance with Section
3.1, shall be entitled to "piggyback" registration rights with respect to Common
Stock.
4.3 Tax Treatment. The Merger is intended to constitute an exchange
-------------
described in Section 351 of the Internal Revenue Code of 1986, as amended.
4.4 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between the parties with respect thereto.
4.5 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of laws thereof.
4
4.6 Counterparts. This Agreement may be executed by the parties hereto in
------------
separate counterparts, each of which when so executed and delivered will be an
original, but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
GREEN MOUNTAIN ENERGY
RESOURCES L.L.C.
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
XXXXXXXXXXXXX.XXX COMPANY
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
5
CERTIFICATION
As Secretary of the Corporation, I hereby certify that this Agreement was
adopted by the board of directors of the Corporation, without a vote of
stockholders, pursuant to Section 251 of the DGCL, and I hereby further certify
that no shares of stock of the Corporation were issued prior to the adoption by
the board of directors of the Corporation of the resolution approving this
Agreement.
XXXXXXXXXXXXX.XXX COMPANY
By:
------------------------------------
Name:
-----------------------------
Title: Secretary
6
