EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of June 11,
1999, is made by and between Green Mountain Energy Resources L.L.C., a Delaware
limited liability company (the "LLC"), and ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 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 3.0 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,
determined by multiplying the number of Units subject to such Option immediately
prior to the Effective Time by 3.0 (the "Conversion Factor"), at an exercise
price per share of Common Stock (rounded 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 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. 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 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 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 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 as
provided in this Agreement. The shares of Common Stock 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, 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 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 shares of Common
Stock with a record date after the Effective Time that would have been paid with
respect to such shares of Common Stock had those shares been issued and
outstanding as of such record date, and (b) at the appropriate payment date, the
amount of dividends or other distributions with respect to such 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 shares of Common Stock had those shares been issued
and outstanding as of such record date.
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: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
M. ▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ COMPANY
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
M. ▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
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 subsection (f) of 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.
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
6
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ COMPANY
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Company, a corporation organized and existing under the
laws of the State of Delaware (the "Company"), hereby certifies as follows:
1. The name of the Company is ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Company.
2. The original Certificate of Incorporation of the Company was filed
with the Secretary of State of the State of Delaware ("Delaware SOS")
on March 3, 1999. A Certificate of Correction to the Company's
Certificate of Incorporation was filed with the Delaware SOS on March
16, 1999. A Certificate of Amendment to the Company's Certificate of
Incorporation was filed with the Delaware SOS on May 20, 1999.
3. This Amended and Restated Certificate of Incorporation amends,
restates and integrates the provisions of the original Certificate of
Incorporation pursuant to resolutions adopted by a majority of the
Board of Directors of the Company in accordance with Sections 241 and
245 of the General Corporation Law of the State of Delaware. As of the
date hereof, the Company has not received payment for any of its
stock.
4. The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
The name of the company is ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Company (the "Company").
ARTICLE II
The address of the Company's registered office in the State of Delaware is
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
The name of the Company's registered agent at such address is The Corporation
Trust Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware (the "DGCL").
ARTICLE IV
Section 1. Authorized Capital Stock. The total number of shares of
------------------------
capital stock that the Company is authorized to issue is 200,000,000 shares,
consisting of 150,000,000 shares of Common Stock, par value $0.01 per share
("Common Stock"), and 50,000,000 shares of Preferred Stock, par value $0.01 per
share ("Preferred Stock").
Section 2. Preferred Stock. The Preferred Stock may be issued in one or
---------------
more series as may be determined by the Board of Directors of the Company (the
"Board"). The Board is authorized to fix the number of shares to be included in
any such series and the designation, relative powers, preferences and rights and
qualifications, limitations and restrictions of all shares of such series. The
authority of the Board with respect to each such series will include, without
limiting the generality or effect of the foregoing, the determination of any or
all of the following:
(a) The number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other series;
(b) The voting powers, if any, and whether such voting powers are
full or limited in such series;
(c) The redemption provisions, if any, applicable to such series,
including the redemption price or prices to be paid;
(d) Whether dividends, if any, will be cumulative or noncumulative,
the dividend rate of such series and the dates and preferences of dividends
on such series;
(e) The rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the Company;
(f) The provisions, if any, pursuant to which the shares of such
series are convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class or classes
of stock, or any other security, of the Company or any other corporation or
other entity, and the price or prices or the rates of exchange applicable
thereto;
(g) The right, if any, to subscribe for or to purchase any securities
of the Company or any other corporation or other entity;
(h) The provisions, if any, of a sinking fund applicable to such
series; and
(i) Any other relative, participating, optional or other special
powers, preferences, rights, qualifications, limitations or restrictions
thereof;
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of such Preferred Stock
(collectively, a "Preferred Stock Designation").
Section 3. Common Stock. Except as may otherwise be provided in a
------------
Preferred Stock Designation, the holders of Common Stock will be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders for each
share of Common Stock held of record by the holder as of the record date for
that meeting.
ARTICLE V
The Board may make, amend and repeal the Bylaws of the Company. Any Bylaw
made by the Board under the powers conferred hereby may be amended or repealed
by the Board (except as specified in any such Bylaw so made or amended) or by
the stockholders in the manner provided in the Bylaws of the Company.
Notwithstanding the foregoing and anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, Bylaws 1, 3, 8, 10, 11,
12, 13, 34 and 40 may not be amended or repealed by the stockholders, and no
provision inconsistent therewith may be adopted by the stockholders, without the
affirmative vote of the holders of record of at least 80% of the Voting Stock,
voting together as a single class. For the purposes of this Amended and
Restated Certificate of Incorporation, "Voting Stock" means the capital stock of
the Company of any class or series entitled to vote generally in the election of
Directors. Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of record of at least 80% of the Voting Stock, voting together as a
single class, is required to amend or repeal, or to adopt any provision
inconsistent with, this Article V.
-2-
ARTICLE VI
Subject to the rights of the holders of any series of Preferred Stock:
(a) any action required or permitted to be taken by the stockholders of
the Company must be effected at a duly called annual or special
meeting of stockholders of the Company and may not be effected by any
consent in writing of the stockholders; and
(b) special meetings of the stockholders of the Company may be called only
by (i) the Chairman of the Board (the "Chairman"), (ii) a Vice
Chairman of the Board, (iii) the Secretary of the Company within ten
calendar days after receipt of a written request of a majority of the
total number of Directors that the Company would have if there were no
vacancies (the "Whole Board"), or (iv) as otherwise provided in a
Preferred Stock Designation.
At any annual meeting or special meeting of the stockholders of the Company,
only such business will be conducted or considered as has been brought before
such meeting in the manner provided in the Bylaws of the Company.
Notwithstanding anything contained in this Amended and Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of record of
at least 80% of the Voting Stock, voting together as a single class, is required
to amend or repeal, or to adopt any provision inconsistent with, this Article
VI.
ARTICLE VII
Section 1. Number, Election and Terms of Directors. Subject to the
---------------------------------------
rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, the number of the Directors of the Company will not be less than
three nor more than 15 and will be fixed from time to time in the manner
described in the Bylaws of the Company. The Directors, other than those who may
be elected by the holders of any series of Preferred Stock, will be classified
with respect to the time for which they severally hold office into three
classes, as nearly equal in number as possible, designated Class I, Class II and
Class III. The Directors first appointed to Class I will hold office for a term
expiring at the annual meeting of stockholders to be held in 2000; the Directors
first appointed to Class II will hold office for a term expiring at the annual
meeting of stockholders to be held in 2001; and the Directors first appointed to
Class III will hold office for a term expiring at the annual meeting of
stockholders to be held in 2002. The members of each class will hold office
until their successors are elected and qualified or until their earlier
resignation or removal. At each succeeding annual meeting of the stockholders
of the Company, the successors of the class of Directors whose terms expire at
that meeting will be elected by plurality vote of all votes cast at such meeting
to hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election. Subject to the rights, if
any, of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation,
Directors may be elected by the stockholders only at an annual meeting of
stockholders. Election of Directors of the Company need not be by written
ballot unless requested by the Chairman or by
-3-
the holders of a majority of the Voting Stock present in person or represented
by proxy at a meeting of the stockholders at which Directors are to be elected.
Section 2. Nomination of Director Candidates. Advance notice of
---------------------------------
stockholder nominations for the election of Directors must be given in the
manner provided in the Bylaws of the Company.
Section 3. Newly Created Directorships and Vacancies. Subject to the
-----------------------------------------
rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal or other cause will be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board, or by a sole remaining Director, or
if there is no remaining Director, by the stockholders of the Company. Any
Director elected in accordance with the preceding sentence will hold office for
the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Director's
successor has been elected and qualified. No decrease in the number of
Directors constituting the Board may shorten the term of any incumbent Director.
Section 4. Removal. Subject to the rights, if any, of the holders of any
-------
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, any Director may be removed from
office by the stockholders only for cause and only in the manner provided in
this Section 4. At any annual or special meeting of the stockholders, the
notice of which states that the removal of a Director or Directors is among the
purposes of the meeting, the affirmative vote of the holders of at least 80% of
the Voting Stock, voting together as a single class, may remove such Director or
Directors for cause.
Section 5. Amendment, Repeal, Etc. Notwithstanding anything contained in
-----------------------
this Amended and Restated Certificate of Incorporation to the contrary, the
affirmative vote of at least 80% of the Voting Stock, voting together as a
single class, is required to amend or repeal, or to adopt any provision
inconsistent with, this Article VII.
ARTICLE VIII
To the fullest extent permitted by the DGCL or any other applicable law
currently or hereafter in effect, no Director of the Company will be personally
liable to the Company or its stockholders for or with respect to any acts or
omissions in the performance of his or her duties as a Director of the Company.
Any repeal or modification of this Article VIII will not adversely affect any
right or protection of a Director of the Company in respect of any act or
omission occurring in whole or in part prior to such repeal or modification.
-4-
ARTICLE IX
The Company will to the fullest extent permitted by applicable law as then
in effect indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether brought by
or in the right of the Company or otherwise, by reason of the fact that such
person is or was a director or officer of the Company, or is or was a director
or officer of the Company and is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding. The right to indemnification shall extend to
the heirs, executors, administrators and estate of any such director or officer.
The right to indemnification provided in this Article IX: (a) will not be
exclusive of any other rights to which any person seeking indemnification may
otherwise be entitled, including without limitation, pursuant to any contract
approved by a majority of the Whole Board (whether or not the Directors
approving such contract are or are to be parties to such contract or similar
contracts); and (b) will be applicable to matters otherwise within its scope
whether or not such matters arose or arise before or after the adoption of this
Article IX. Without limiting the generality or the effect of the foregoing, the
Company may adopt Bylaws, or enter into one or more agreements with any person,
that provide for indemnification greater or otherwise different than that
provided in this Article IX or the DGCL, and any such agreement approved by a
majority of the Whole Board will be a valid and binding obligation of the
Company regardless of whether one or more members of the Board, or all members
of the Board, are parties thereto or to similar agreements. Notwithstanding
anything to the contrary in this Article IX, in the event that the Company
enters into a contract with any person providing for indemnification of such
person, the provisions of that contract will exclusively govern the Company's
obligations in respect of indemnification for or advancement of fees or
disbursements of that person's counsel or any other professional engaged by that
person. Any amendment or repeal of, or adoption of any provision inconsistent
with, this Article IX will not adversely affect any right or protection existing
hereunder, or arising out of events occurring or circumstances existing, in
whole or in part, prior to such amendment, repeal or adoption, and no such
amendment, repeal or adoption will affect the legality, validity or
enforceability of any contract entered into or right granted prior to the
effective date of such amendment, repeal or adoption.
-5-
IN WITNESS WHEREOF, the Company has caused this certificate to be
executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, its Vice President, General Counsel and Secretary,
as of June 11, 1999.
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President, General Counsel
and Secretary
-----------------------------------
-6-