CONTRIBUTION AGREEMENT
Exhibit
10.1
This CONTRIBUTION AGREEMENT (the “Agreement”) is dated
as of November 17, 2008 by and among RIDGEWOOD OLINDA, LLC, a Delaware limited
liability company (“Olinda”), RIDGEWOOD
ELECTRIC POWER TRUST III, a Delaware business
trust (“Trust
III”), RIDGEWOOD ELECTRIC POWER TRUST IV, a Delaware business
trust (“Trust
IV”), RIDGEWOOD POWER B FUND/PROVIDENCE EXPANSION, a Delaware business
trust (“B Fund”
and together with Olinda, Trust III and Trust IV, the “Contributing
Parties”), RIDGEWOOD PROVIDENCE POWER CORPORATION, a Delaware corporation
(“RPPC”), RHODE
ISLAND GAS MANAGEMENT LLC, a Delaware limited liability company (“RIGM”), RIDGEWOOD
MANAGEMENT CORPORATION, a Delaware corporation (“RMC”), RHODE ISLAND
LFG GENCO, LLC, a Delaware limited liability company (“RILG”), and RIDGEWOOD
RENEWABLE POWER LLC, a Delaware limited liability company, as managing
shareholder of Trust III, Trust IV and B Fund (the “Managing
Shareholder”). Olinda, Trust III, Trust IV, B Fund, RPPC, RIGM, RMC,
RILG and the Managing Shareholder may be referred to herein collectively as the
“Parties” and
individually as a “Party.”
WHEREAS, Trust III owns 35.33% of the
limited partnership interest, Trust IV owns 63.67% of the limited partnership
interest and RPPC owns 1% of the general partnership interest (collectively, the
“RPPP
Interests”) in Ridgewood Providence Power Partners, L.P., a Delaware limited
partnership (“RPPP”), which owns an
electric generating facility at the Central Landfill in Johnston, Rhode Island
(the “Landfill”);
WHEREAS, Trust III owns 35.7% of the
stock and Trust IV owns 64.3% of the stock in RPPC (the “RPPC
Interests”);
WHEREAS, Olinda owns 15% of the
membership interest and B Fund owns 85% of the membership interest
(collectively, the “RRIG Interests”) in
Ridgewood Rhode Island Generation LLC, a Delaware limited liability company
(“RRIG”), which
owns an electric generating facility at the Landfill;
WHEREAS, Trust III owns 35.7% of the
membership interest and Trust IV owns 64.3% of the membership interest in RIGM
(the “RIGM
Interests” and collectively with the RPPP Interests, RPPC Interests and
RRIG Interests, the “Interests”), and RIGM
owns 100% of the membership interests in Ridgewood Gas Services LLC (“RGS”) which collects,
meters and delivers all landfill gas collected in the gas collection systems at
the Landfill; and
WHEREAS, in order to facilitate the
potential development of new and additional uses of the landfill gas at the
Landfill (including the potential development of new electric generating
facilities at the Landfill), the Parties wish to consolidate the ownership of
the Interests in RILG; and
WHEREAS, in order to effect that
consolidation of the Interests in RILG, Olinda, Trust III, Trust IV and B Fund,
each wish to contribute their Interests to RILG in exchange for an allocable
membership interest in RILG;
NOW, THEREFORE, in consideration of the
mutual agreements herein contained and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties hereto agree as follows:
1. Contribution of
Interests.
(a) Trust
III and Trust IV, pursuant to the Transfer and Assignment of Interests attached
hereto as Exhibit B and the Stock Powers attached hereto as Exhibit C, shall
transfer, convey and assign to RILG each of Trust III's and Trust IV’s right,
title and interest, however evidenced or possessed, in and to their respective
RPPP Interests, RPPC Interests and RIGM Interests, including without limitation
all of their rights in, to and under the Amended and Restated Agreement of
Limited Partnership of Ridgewood Providence Power Partners, L.P., dated as of
April 1, 1996 (the “Limited Partnership
Agreement”) and the Limited Liability Company Agreement of Rhode Island
Gas Management LLC dated as of March 4, 2002 (the “RIGM LLC Agreement”),
in exchange for the membership and economic interests in RILG in
Exhibit A.
(b) Olinda
and B Fund, pursuant to the Transfer and Assignment of Interests attached hereto
as Exhibit D, shall transfer, convey and assign to RILG each of Olinda's and B
Fund’s right, title and interest, however evidenced or possessed, in and to
their respective RRIG Interests, including without limitation all of their
rights in, to and under the Amended and Restated Limited Liability Company
Agreement of Ridgewood Rhode Island Generation LLC dated as of January 1, 2005
(the “RRIG LLC
Agreement”), in exchange for the membership and economic interests in
RILG in Exhibit A.
2. Assumption.
(a) RILG,
pursuant to the Transfer and Assignment of Interests attached hereto as Exhibit
B, shall acknowledge and accept the contribution of the RPPP Interests and RIGM
Interests and shall assume all Trust III’s and Trust IV’s obligations and
liabilities arising from or related to the RPPP Interests and RIGM Interests
arising or accruing from and after the date hereof, including without limitation
those obligations and liabilities arising under the Limited Partnership
Agreement and the RIGM LLC Agreement, and will become the sole limited partner
of RPPP and the sole member of RIGM.
(b) RILG,
pursuant to the Stock Powers attached hereto as Exhibit C, shall acknowledge and
accept the contribution of the RPPC Interests and shall assume all Trust III’s
and Trust IV’s obligations and liabilities arising from or related to the RPPC
Interests arising or accruing from and after the Effective Date, and will become
the sole shareholder of RPPC.
(c) RILG,
pursuant to the Transfer and Assignment of Interests attached hereto as Exhibit
C, shall acknowledge and accept the contribution of the RRIG Interests, and
shall
assume all Olinda’s and B Fund’s obligations and liabilities arising from or
related to the RRIG Interests arising or accruing from and after the date
hereof, including without limitation those obligations and liabilities arising
under the RRIG LLC Agreement, and will become the sole member of
RRIG.
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3. Amendments.
(a) RILG
agrees that Exhibit A in each of the RRIG LLC Agreement and the Limited
Partnership Agreement shall be amended as of the date hereof to reflect the
transfer of the RRIG Interests and the RPPP Interests from Olinda, Trust III,
Trust IV and B Fund to RILG.
(b)
RILG agrees that Exhibit A of the Limited Liability Company Agreement of
Ridgewood Gas Services LLC dated as of June 18, 2001 shall be amended, effective
as of the merger of RIGM with and into RILG, as described in Section 5 herein,
to reflect the merger of RIGM with and into RILG and the transfer of RIGM’s
membership interests in RGS to RILG.
4. Waiver.
(a) Each
of Trust III, Trust IV and RPPC agrees to waive Sections 9 and 18 of the Amended
and Restated Agreement of Limited Partnership of Ridgewood Providence Power
Partners, L.P., dated as of April 1, 1996 and each of Trust III and Trust IV
shall be permitted to transfer their RPPP Interests to RILG, pursuant to the
Transfer and Assignment of Interests attached hereto as Exhibit B, without such
transfer resulting in the dissolution of RPPP.
(b) Each
of Trust III, Trust IV and RMC agrees to waive Sections 8.01 and 8.05 of the
Limited Liability Company Agreement of Rhode Island Gas Management LLC dated as
of March 4, 2002 in order to permit the transfer and assumption of the RIGM
Interests pursuant to the Transfer and Assignment of Interests attached hereto
as Exhibit B.
5. Merger of
RIGM. RIGM shall merge with and into RILG on or promptly after
the transfer of the RIGM Interests to RILG, and all of RIGM’s membership
interests in RGS, its wholly-owned subsidiary, shall be transferred to RILG in
accordance with the Agreement and Plan of Merger attached hereto as Exhibit
E.
6. Addition of New Members and
Partners.
(a) Each
of the Parties agrees, to the extent required, to the addition of RILG as a
Member or Limited Partner, as appropriate, in RPPP, RRIG, RIGM and, upon the
merger of RIGM into RILG, RGS.
(b) RMC,
as Manager of RIGM, hereby agrees that RILG has satisfied all conditions of its
admission pursuant to Sections 2.02 and 8.02 of the RIGM LLC
Agreement.
7. Allocation of
Expenses.
(a) The
Parties agree that all expenses incurred, and any expenses previously paid, by
any of them or by the Managing Shareholder related to the transactions described
in this Agreement, including but not limited to investment banking fees, expert
and advisor fees, accountants’
fees, legal fees and shareholder solicitation expenses, shall be allocated to
and paid or reimbursed by the Contributing Parties according to the percentages
set forth in Exhibit A.
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(b) The
Managing Shareholder is hereby authorized to allocate among the Contributing
Parties such other obligations related to the transactions described in this
Agreement as shall be necessary or appropriate in its sole discretion but in
good faith. The Managing Shareholder’s determination shall be binding
on the Parties in the absence of manifest error. The Managing
Shareholder shall allocate such obligations among the Contributing Parties
according to the percentages set forth in Exhibit A unless the Managing
Shareholder determines the facts and circumstances dictate otherwise in its
reasonable determination.
8. Entire
Agreement. This Agreement and the Exhibits attached hereto set
forth the entire understanding of the Parties and supersede any and all prior
agreements, arrangements, and understandings relating to the subject matter
hereof. No representation, promise, inducement, or statement of
intent has been made by any party which is not embodied in this Agreement or the
Exhibits attached hereto, and no party shall be bound by or liable for any
alleged representation, promise, inducement, or statement of intention not
embodied herein.
9. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware, without regard to its
conflict of law principles.
10. Further
Assurances. At any time and from time to time after the date
hereof, at the reasonable request of a Party, the other Parties shall execute
and deliver such agreements, certificates, undertakings, documents and
instruments, to make such filings and registrations and to take such further
action as the Parties reasonably deem useful or required to accomplish the
purposes of this Agreement.
11. Miscellaneous. This
Agreement shall not be amended or modified except by a writing signed by all
parties hereto. It may be executed in one or more counterpart copies,
each of which shall be deemed an original, but all of which shall constitute the
same instrument. Section headings used in this Agreement are for
convenience only and shall not affect the construction of this
Agreement.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed on
their behalf as of the date first set forth above.
| RIDGEWOOD OLINDA, LLC |
RIDGEWOOD
ELECTRIC POWER TRUST
III
|
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| By: | Ridgewood Management Corporation, its Manager | By: Ridgewood Renewable Power LLC | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Name: |
Xxxxxxx X.
Xxxxxx
|
Name: |
Xxxxxxx X.
Xxxxxx
|
||
| Title: |
President and Chief
Executive Officer
|
Title: |
President and Chief
Executive Officer
|
||
| RIDGEWOOD ELECTRIC POWER TRUST IV |
RIDGEWOOD
POWER B FUND/PROVIDENCE
EXPANSION
|
||||
| By: Ridgewood Renewable Power LLC | By: Ridgewood Renewable Power LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Name: |
Xxxxxxx X.
Xxxxxx
|
Name: |
Xxxxxxx X.
Xxxxxx
|
||
| Title: |
President and Chief
Executive Officer
|
Title: |
President and Chief
Executive Officer
|
||
|
RIDGEWOOD
PROVIDENCE POWER CORPORATION
|
RHODE
ISLAND LFG GENCO, LLC
|
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| By: Ridgewood Renewable Power LLC | |||||
| By: | /s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Name: |
Xxxxxxx X.
Xxxxxx
|
Name: |
Xxxxxxx X.
Xxxxxx
|
||
| Title: |
President and Chief
Executive Officer
|
Title: |
President and Chief
Executive Officer
|
||
|
RIDGEWOOD
MANAGEMENT CORPORATION
|
RHODE
ISLAND GAS MANAGEMENT LLC
|
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| By: | Ridgewood Management Corporation, its Manager | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||||
| Name: |
Xxxxxxx X.
Xxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Title: |
President and Chief
Executive Officer
|
Name: |
Xxxxxxx X.
Xxxxxx
|
||
|
|
Title: |
President and Chief
Executive Officer
|
|||
|
RIDGEWOOD
RENEWABLE POWER LLC,
|
|||||
|
solely
in its capacity as Managing Shareholder
|
|||||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||||
| Name: |
Xxxxxxx X.
Xxxxxx
|
|
|||
| Title: |
President and Chief
Executive Officer
|
|
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EXHIBIT
A
RILG
INTERESTS
|
Member
|
Percent
of Membership
Interests
and Economic
Interests
in RILG
|
|
Olinda
|
6.7800%
|
|
Trust
III
|
19.5636%
|
|
Trust
IV
|
35.2364%
|
|
B
Fund
|
38.4200%
|
EXHIBIT
B
TRANSFER
AND ASSIGNMENT OF INTERESTS
THIS TRANSFER AND ASSIGNMENT OF
INTERESTS (this “Assignment”) is made as of November 17, 2008, by and among
Ridgewood Electric Power Trust III, a Delaware business trust (“Trust III”),
Ridgewood Electric Power Trust IV, a Delaware business trust (“Trust IV”) and
Rhode Island LFG Genco, LLC, a Delaware limited liability company
(“RILG”). Trust III, Trust IV and RILG may be referred to herein as
the “Parties” and individually as a “Party.” Capitalized terms used
but not defined in this Assignment shall have the meanings ascribed to such
terms in the Contribution Agreement, dated as of November 17, 2008 (the
“Agreement”), by and among Trust III, Trust IV and RILG among
others.
RECITALS
WHEREAS, pursuant to the Agreement,
Trust III and Trust IV have agreed to transfer, convey and assign their
respective RPPP Interests and RIGM Interests to RILG and RILG has agreed to
accept the contribution of such Interests from Trust III and Trust IV, all as
more fully described in the Agreement; and
WHEREAS, pursuant to the Agreement, the
Parties have agreed to enter into this Assignment.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Trust
III and Trust IV hereby transfer, convey and assign to RILG each of Trust III’s
and Trust IV’s right, title and interest, however evidenced or possessed, in and
to the RPPP Interests and the RIGM Interests, including without limitation all
of their rights, title and interest in, to and under the Amended and Restated
Agreement of Limited Partnership of Ridgewood Providence Power Partners, L.P.,
dated as of April 1, 1996 (the “Limited Partnership Agreement”) and the Limited
Liability Company Agreement of Rhode Island Gas Management LLC dated as of March
4, 2002 (the “RIGM LLC Agreement”), in exchange for the membership and economic
interests in RILG as set forth in Exhibit A of the Agreement.
2. RILG
acknowledges and accepts the contribution of the Interests and does hereby
assume all of Trust III’s and Trust IV’s obligations and liabilities arising
from or related to the Interests arising or accruing from and after the date
hereof, including without limitation those obligations and liabilities arising
under the Limited Partnership Agreement and the RIGM LLC Agreement, and RILG
agrees to become the sole limited partner of RPPP and the sole member of
RIGM.
3. This
Assignment shall be governed by the laws of the State of Delaware, without
regard to its conflict of law principles.
4. This
Assignment may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
[Remainder
of this page intentionally left blank]
-8-
IN WITNESS
WHEREOF, the Parties hereto have executed and delivered this Assignment as of
the day and year first written above.
| RIDGEWOOD ELECTRIC POWER TRUST III |
RIDGEWOOD
ELECTRIC POWER TRUST
IV
|
||||
| By: | Ridgewood Renewable Power LLC | By: | Ridgewood Renewable Power LLC | ||
| By: | By: | ||||
|
Xxxxxxx X.
Xxxxxx
|
Name: |
Xxxxxxx X.
Xxxxxx
|
|||
|
President and Chief
Executive Officer
|
Title: |
President and Chief
Executive Officer
|
|||
|
RHODE
ISLAND LFG GENCO, LLC
|
|
||||
| By: | Ridgewood Renewable Power LLC | ||||
| By: | |||||
|
Xxxxxxx X.
Xxxxxx
|
|
||||
|
President and Chief
Executive Officer
|
|
||||
EXHIBIT
C-1
STOCK
POWER
FOR
VALUE RECEIVED, Ridgewood Electric Power Trust III hereby sells, assigns
and transfers unto Rhode Island LFG Genco, LLC, 356.86 shares of the common
stock without par value of Ridgewood Providence Power Corporation (the
“Corporation”) standing in its name of said Corporation represented by
Certificate No. 5, and does hereby irrevocably constitute and appoint Rhode
Island LFG Genco, LLC attorney-in-fact to transfer the said stock on the books
of said Corporation with full power of substitution in the
premises.
| Dated: November 17, 2008 | |||
| RIDGEWOOD ELECTRIC POWER TRUST III | |||
| By: Ridgewood Renewable Power LLC | |||
|
By:
|
|||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | President and Chief Executive Officer | ||
In the
presence of:
EXHIBIT
C-2
STOCK
POWER
FOR
VALUE RECEIVED, Ridgewood Electric Power Trust IV hereby sells, assigns
and transfers unto Rhode Island LFG Genco, LLC, 643.14 shares of the common
stock without par value of Ridgewood Providence Power Corporation (the
“Corporation”) standing in its name of said Corporation represented by
Certificate No. 3, and does hereby irrevocably constitute and appoint Rhode
Island LFG Genco, LLC attorney-in-fact to transfer the said stock on the books
of said Corporation with full power of substitution in the
premises.
| Dated: November 17, 2008 | |||
| RIDGEWOOD ELECTRIC POWER TRUST IV | |||
| By: Ridgewood Renewable Power LLC | |||
|
By:
|
|||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | President and Chief Executive Officer | ||
In the
presence of:
EXHIBIT
D
TRANSFER
AND ASSIGNMENT OF INTERESTS
THIS TRANSFER AND ASSIGNMENT OF
INTERESTS (this “Assignment”) is made as of November 17, 2008, by and among
Ridgewood Olinda LLC, a Delaware limited liability company (“Olinda”), Ridgewood
Power B Fund/Providence Expansion, a Delaware business trust (“B Fund”) and
Rhode Island LFG Genco, LLC, a Delaware limited liability company
(“RILG”). Olinda, B Fund and RILG may be referred to herein as the
“Parties” and individually as a “Party.” Capitalized terms used but
not defined in this Assignment shall have the meanings ascribed to such terms in
the Contribution Agreement, dated as of November 17, 2008 (the “Agreement”), by
and among Olinda, B Fund and RILG among others.
RECITALS
WHEREAS, pursuant to the Agreement,
Olinda and B Fund have agreed to transfer, convey and assign their respective
RRIG Interests to RILG and RILG has agreed to accept the contribution of such
RRIG Interests from Olinda and B Fund, all as more fully described in the
Agreement; and
WHEREAS, pursuant to the Agreement, the
Parties have agreed to enter into this Assignment.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Olinda
and B Fund hereby transfer, convey and assign to RILG each of Olinda’s and B
Fund’s right, title and interest, however evidenced or possessed, in and to the
RRIG Interests, including without limitation all of their rights, title and
interest in, to and under the Amended and Restated Limited Liability Company
Agreement of Ridgewood Rhode Island Generation LLC, dated as of January 1, 2005
(the “RRIG LLC Agreement”), in exchange for the membership and economic
interests in RILG as set forth in Exhibit A of the Agreement.
2. RILG
acknowledges and accepts the contribution of the RRIG Interests and does hereby
assume all of Olinda’s and B Fund’s obligations and liabilities arising from or
related to the RRIG Interests arising or accruing from and after the date
hereof, including without limitation those obligations and liabilities arising
under the RRIG LLC Agreement, and RILG agrees to become the sole member of
RRIG.
3. This
Assignment shall be governed by the laws of the State of Delaware, without
regard to its conflict of law principles.
4. This
Assignment may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties hereto
have executed and delivered this Assignment as of the day and year first written
above.
| RIDGEWOOD OLINDA, LLC |
RIDGEWOOD
POWER B FUND/PROVIDENCE EXPANSION
|
||||
| By: |
Ridgewood Management
Corporation, its Manager
|
By: | Ridgewood Renewable Power LLC | ||
| By: | By: | ||||
|
Xxxxxxx X.
Xxxxxx
|
Name: |
Xxxxxxx X.
Xxxxxx
|
|||
|
President and Chief
Executive Officer
|
Title: |
President and Chief
Executive Officer
|
|||
|
RHODE
ISLAND LFG GENCO, LLC
|
|
||||
| By: | Ridgewood Renewable Power LLC | ||||
| By: | |||||
|
Xxxxxxx X.
Xxxxxx
|
|
||||
|
President and Chief
Executive Officer
|
|
||||
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EXHIBIT
E
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER (this “Agreement”), dated as of November 17, 2008, by and between
Rhode Island LFG Genco, LLC, a Delaware limited liability company (“RILG”), and
Rhode Island Gas Management LLC, a Delaware limited liability company (“RIGM”)
(RILG and RIGM are sometimes referred to collectively as the
“Constituent Companies”).
W
I T N E S S E T H :
WHEREAS, RILG and RIGM are
duly organized and existing under the laws of the State of Delaware;
and
WHEREAS, the Members of RILG
and the sole Member of RIGM deem it desirable that RIGM be merged with and into
RILG and that RILG be the surviving company, on the terms and conditions herein
provided; and
WHEREAS, the Members of RILG
and the sole Member of RIGM have approved this Agreement.
NOW, THEREFORE, in
consideration of the recitals and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties intending
to be legally bound agree as follows:
Section
1
Terms
and Conditions
1.1 On
the Effective Date (as hereinafter defined), RIGM shall be merged with and into
RILG (the “Merger”), and the separate existence of RIGM shall thereupon cease in
accordance with the applicable provisions of the Delaware Limited Liability
Company Act (the “Delaware LLC Act”). RILG shall be the surviving
company of the Merger (the “Surviving Company”) and will continue to be governed
by the laws of the State of Delaware, and the separate existence of RILG and all
of its rights, privileges, immunities, powers and franchises will continue
unaffected by the Merger. The Merger will have the effects specified
in the Delaware LLC Act.
1.2 On
the Effective Date:
(a) All
of the membership interests of RIGM issued and outstanding immediately prior to
the Effective Date shall be canceled and retired, without any conversion thereof
and no payment or distribution shall be made with respect thereto.
(b) The
Surviving Company shall acquire all of the assets and assume all of the
liabilities and obligations of RIGM, and the Surviving Company shall thereafter
possess all of the rights, privileges, powers and franchises and be subject to
all of the restrictions, disabilities and
duties of each of the Constituent Companies, and all property belonging to each
of the Constituent Companies shall be vested in the Surviving Company without
further act or deed, and all debts, liabilities and duties of the respective
Constituent Companies shall thenceforth attach to the Surviving Company by
operation of law, all in the manner and to the fullest extent provided by the
Delaware LLC Act.
(c) The
Members of RILG shall, on and after the Effective Date, be the Members of the
Surviving Company until their respective successors are duly elected or
appointed and qualified in the manner provided in the Limited Liability Company
Agreement of the Surviving Company or as may be otherwise provided by
law.
Section
2
Representations
and Warranties
2.1 RILG
represents and warrants to RIGM as of the date hereof and as of the Effective
Date as follows:
(a) Existence and
Power. RILG (a) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and (b) has all necessary corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby.
(b) Authorization; Binding
Effect. The execution and delivery by RILG of this Agreement,
the performance by RILG of its obligations under this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary member action on the part of RILG.
(c) Interests. All
of the outstanding membership interests of RILG are owned,
beneficially and of record, by Ridgewood Olinda, LLC, Ridgewood Electric Power
Trust III, Ridgewood Electric Power Trust IV and Ridgewood Power B
Fund/Providence Expansion. Each Member has authorized the merger of
RIGM into RILG.
2.2 RIGM
hereby represents and warrants to RILG as of the date hereof and as of the
Effective Date as follows:
(a) Existence and
Power. RIGM (a) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and (b) has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby and to perform
its obligations under this Agreement.
(b) Authorization; Binding
Effect. The execution and delivery by RIGM of this Agreement,
the performance by RIGM of its obligations under this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary member action on the part of RIGM.
(c) Interests. All
of the outstanding membership interests of RIGM are owned,
beneficially and of record, by RILG. Such member has authorized the
merger of RIGM into RILG.
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Section
3
Effective
Date
3.1 If
this Agreement is not terminated as contemplated by Section 6.2 hereof, a
certificate of merger, executed in accordance with the laws of the State of
Delaware, shall be filed with the Secretary of State of the State of Delaware as
provided in Section 18-209 of the Delaware LLC Act (the “Delaware Certificate of
Merger”).
3.2 The
Merger shall become effective in the State of Delaware as of 11:59 p.m., Eastern
Daylight Time, on November 17, 2008 (such time and date being herein
referred to as the “Effective Date”).
Section
4
Covenants
and Agreements
Each of
the Constituent Companies covenants and agrees that it shall cause to be
executed, filed and recorded any other document or documents prescribed by the
laws of the State of Delaware, and that each Constituent Company shall cause to
be performed all necessary acts therein and elsewhere, to effectuate the
Merger.
Section
5
Limited
Liability Company Agreement
5.1 The
Limited Liability Company Agreement of RILG in the form attached hereto as
Exhibit A shall be the Amended and Restated Limited Liability Company Agreement
of the Surviving Company, until amended in accordance with the provisions
thereof and of applicable law.
Section
6
Amendment
and Termination
6.1 At
any time prior to the filing of the Delaware Certificate of Merger with the
Secretary of State of the State of Delaware, this Agreement may be amended by
the Constituent Companies by a signed written instrument approved by the Members
of RILG and the sole Member of RIGM.
6.2 At
any time prior to the filing of the Delaware Certificate of Merger with the
Secretary of State of the State of Delaware, this Agreement may be terminated
and abandoned by the Constituent Companies by a signed written instrument
approved by the Member of RILG and the sole Member of RIGM.
Section
7
Miscellaneous
7.1 Notices. All
notices, requests, demands and other communications to any party or given under
this Agreement shall be in writing and delivered personally, by overnight
delivery or courier, by certified mail, return receipt requested to the parties
as follows:
-16-
Rhode
Island LFG Genco, LLC
c/o Ridgewood Renewable Power LLC,
Manager
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx
00000
Attn: General Counsel
All
notices, requests, demands and other communications will be deemed delivered
when actually received.
7.2 Amendment of
Agreement. This Agreement may not be amended, modified or
waived except in accordance with Section 6.1.
7.3 Governing
Law. This Agreement will be governed by, and construed in
accordance with the laws of, and the decisions of the courts of, the State of
Delaware, applicable to contracts executed in and to be performed entirely
within that state, without reference to conflicts of laws
provisions.
7.4 Further
Assurances. In order to carry out more effectively the
purposes of this Agreement, promptly upon the reasonable request by RILG or
RIGM, the parties hereto shall (a) correct any defect or error that may be
discovered in this Agreement or in the execution, delivery, acknowledgment or
recordation of this Agreement, and (b) execute, acknowledge, deliver, record,
file and register, any and all such further acts, conveyances, assignments,
financing statements and continuations, notices of assignment, transfers,
certificates, assurances and other instruments, in each case, as such requesting
party may require from time to time.
[Signature
Page Follows.]
-17-
IN WITNESS WHEREOF, RILG and
RIGM have each caused this Agreement to be executed by its duly authorized
representative, all as of the date first written above.
|
RHODE
ISLAND LFG GENCO, LLC
|
|||
| By: | Ridgewood Renewable Power LLC, its Manager | ||
| By: | |||
|
|
Xxxxxxx X.
Xxxxxx
|
||
|
|
President and Chief
Executive Officer
|
||
|
RHODE
ISLAND GAS MANAGEMENT
LLC
|
|||
| By: | Ridgewood Management Corporation, its Manager | ||
| By: | |||
|
|
Xxxxxxx X.
Xxxxxx
|
||
|
|
President and Chief
Executive Officer
|
||
|
Signature
Page to Agreement and Plan of
Merger
|
EXHIBIT
A
Amended and Restated Limited
Liability Company Agreement
Attached
as Exhibit 10.2 in this Current Report
