EXHIBIT 2(a)
JOINT AGREEMENT OF MERGER
OF
CLECO UTILITY GROUP INC.
WITH AND INTO
CLECO POWER LLC
This Joint Agreement of Merger (this "Joint Agreement") is dated December
15, 2000 between Cleco Utility Group Inc., a Louisiana corporation (the
"Corporation"), and Cleco Power LLC, a Louisiana limited liability company (the
"LLC"), and is entered into pursuant to the provisions of Sections 111 et seq.
of the Louisiana Business Corporation Law ("LBCL") and Sections 1357 et seq. of
the Louisiana Limited Liability Companies Law ("LLCL").
WHEREAS, the Board of Directors of the Corporation and the Managers of the
LLC (collectively, the "Merging Companies") deem it advisable that the
Corporation be merged with and into the LLC (the "Merger") pursuant to the LBCL
and LLCL; and,
WHEREAS, the sole shareholder of the Corporation has authorized the Merger
pursuant to resolutions duly adopted at a meeting of the sole shareholder held
on October 27, 2000; and
WHEREAS, the sole member of the LLC has authorized the Merger pursuant to
resolutions duly adopted at a meeting of the sole member on December 15, 2000;
NOW THEREFORE, in consideration of the mutual benefits to be derived from
this Joint Agreement and the Merger, the parties hereto agree as follows:
1. THE MERGER
In accordance with the applicable provisions of the LBCL and LLCL, the
Corporation shall be merged with and into the LLC; the separate existence of the
Corporation shall cease; and the LLC shall survive the Merger.
2. EFFECTIVENESS OF THE MERGER
2.1 Effective Time and Effective Date of the Merger. The Merger shall
become effective at 11:59 P.M. (Baton Rouge time) (the "Effective Time") on
December 31, 2000 (the "Effective Date").
2.2 Effect of the Merger. At the Effective Time, (i) the separate
existence of the Corporation shall cease and the Corporation shall be merged
with and into the LLC; (ii) the LLC shall continue to possess all of the rights,
privileges and franchises possessed by it and shall, at the Effective Time,
become vested with and possess all rights, privileges and franchises possessed
by the Corporation; (iii) the LLC shall be responsible for all of the
liabilities and obligations of the Corporation in the same manner as if the LLC
had itself incurred such liabilities or obligations, and
the Merger shall not affect or impair the rights of the creditors or of any
persons dealing with the Merging Companies; (iv) the Merger will not of itself
cause a change, alteration or amendment to the Articles of Organization or
Operating Agreement of the LLC which shall be the entity surviving the Merger;
and (v) the Merger shall, from and after the Effective Time, have all the
effects provided by applicable Louisiana law.
2.3 Additional Actions. If, at any time after the Effective Time, the LLC
shall consider or be advised that any further assignments or assurances in law
of any other acts are necessary or desirable (a) to vest, perfect or confirm, of
record or otherwise, in the LLC, title to or the possession of any property or
right of the Corporation acquired or to be acquired by reason of, or as a result
of, the Merger, or (b) otherwise to carry out the purposes of this Joint
Agreement, the Corporation and its proper officers and directors shall be deemed
to have granted to the LLC an irrevocable power of attorney to execute and
deliver all such proper deeds, assignments and assurances in law and to do all
acts necessary or proper to vest, perfect or confirm title to and possession of
such property or rights in the LLC and otherwise to carry out the purposes of
this Joint Agreement; and the members and the Managers of the LLC are fully
authorized in the name of the Corporation to take any and all such action.
3. METHOD OF CARRYING MERGER INTO EFFECT
This Joint Agreement shall be submitted to the shareholder of the
Corporation and the member of the LLC for their respective approval. If such
approval is given, then the fact of such approval shall be certified hereon by
the Secretary of the Corporation and a Manager of the LLC. This Joint
Agreement, so approved and certified, shall, as soon as is practicable, be
signed and acknowledged by the President of the Corporation and a Manager of the
LLC. As soon as may be practicable thereafter, this Joint Agreement, so
certified, signed and acknowledged, shall be delivered to the Secretary of State
of Louisiana for filing in the manner required by law and shall be effective at
the Effective Time on the Effective Date; and thereafter, as soon as
practicable, a copy of the Certificate of Merger issued by the Secretary of
State of Louisiana, and certified by him to be a true copy, shall be filed for
record in the Office of the Recorder of Mortgages in the parish in which the
Corporation has its registered office and shall be filed for record in the
office of the Recorder of Conveyances in each parish in which any of the Merging
Companies own immovable property.
4. CANCELLATION OF SHARES
On the Effective Date, by reason of the Merger and without any further
action on the part of the Merging Companies or their respective shareholders or
members, each issued and outstanding share of (i) common stock, par value $2.00
per share, (ii) preferred stock, par value $100 per share, and (iii) preferred
stock, par value $25 per share, of the Corporation shall be canceled and the
separate corporate existence of the Corporation shall cease.
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5. MISCELLANEOUS
5.1 Headings. The descriptive headings of the sections of this Joint
Agreement are inserted for convenience only and do not constitute a part hereof
for any other purpose.
5.2 Modifications, Amendments and Waivers. At any time prior to the
Effective Time (notwithstanding any shareholder or member approval that may have
already been given), the parties hereto may, to the extent permitted by law,
modify, amend or supplement any term or provision of this Joint Agreement.
IN WITNESS WHEREOF, this Joint Agreement has been approved by the Board of
Directors of the Corporation and the Managers of the LLC, effective as of the
day and year first above written.
FOR THE BOARD OF DIRECTORS OF
CLECO UTILITY GROUP INC.
/s/Sherian G. Cadoria
-----------------------------------
Sherian G. Cadoria, Director
/s/Richard B. Crowell
-----------------------------------
Richard B. Crowell, Director
/s/David M. Eppler
-----------------------------------
David M. Eppler, Director
/s/J. Patrick Garrett
-----------------------------------
J. Patrick Garrett, Director
/s/F. Ben James, Jr.
-----------------------------------
F. Ben James, Jr., Director
/s/Elton R. King
-----------------------------------
Elton R. King, Director
/s/A. DeLoach Martin, Jr.
-----------------------------------
A. DeLoach Martin, Jr., Director
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/s/Robert T. Ratcliff
-----------------------------------
Robert T. Ratcliff, Director
/s/Edward M. Simmons
-----------------------------------
Edward M. Simmons, Director
/s/William H. Walker, Jr.
-----------------------------------
William H. Walker, Jr., Director
FOR THE MANAGERS OF
CLECO POWER LLC
/s/Sherian G. Cadoria
-----------------------------------
Sherian G. Cadoria, Manager
/s/Richard B. Crowell
-----------------------------------
Richard B. Crowell, Manager
/s/David M. Eppler
-----------------------------------
David M. Eppler, Manager
/s/J. Patrick Garrett
-----------------------------------
J. Patrick Garrett, Manager
/s/F. Ben James, Jr.
-----------------------------------
F. Ben James, Jr., Manager
/s/Elton R. King
-----------------------------------
Elton R. King, Manager
/s/A. DeLoach Martin, Jr.
-----------------------------------
A. DeLoach Martin, Jr., Manager
/s/Robert T. Ratcliff
-----------------------------------
Robert T. Ratcliff, Manager
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/s/Edward M. Simmons
-----------------------------------
Edward M. Simmons, Manager
/s/William H. Walker, Jr.
-----------------------------------
William H. Walker, Jr., Manager
CERTIFICATE OF SECRETARY OF
CLECO UTILITY GROUP INC.
(A Louisiana Corporation)
I hereby certify that I am the duly elected Secretary of Cleco Utility
Group Inc., a Louisiana corporation, presently serving in such capacity, and
that the foregoing Joint Agreement of Merger was, in the manner required by the
Louisiana Business Corporation Law, duly approved, without alteration or
amendment, by the sole shareholder of Cleco Utility Group Inc. pursuant to a
written consent of the sole shareholder.
Certificate dated December 15, 2000.
/s/Michael P. Prudhomme
-----------------------
Michael P. Prudhomme, Secretary
CERTIFICATE OF EXECUTIVE MANAGER OF
CLECO POWER LLC
(A Louisiana limited liability company)
I hereby certify that I am a duly elected Manager of Cleco Power LLC, a
Louisiana limited liability company, presently serving in such capacity, and
that the foregoing Joint Agreement of Merger was duly approved, without
alteration or amendment, by the sole member of Cleco Power LLC pursuant to a
written consent of the sole member.
Certificate dated December 15, 2000.
/s/David M. Eppler
------------------
David M. Eppler, Manager
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EXECUTION BY THE PARTIES
Considering the foregoing certification, this Joint Agreement of Merger is
executed by the parties hereto, this 15th day of December, 2000.
CLECO UTILITY GROUP INC.
By: /s/David M. Eppler
------------------
David M. Eppler, President
CLECO POWER LLC
By: /s/David M. Eppler
------------------
David M. Eppler, Manager
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ACKNOWLEDGMENT AS TO CLECO UTILITY GROUP INC.
STATE OF LOUISIANA
PARISH OF RAPIDES
BEFORE ME, the undersigned authority, personally came and appeared David M.
Eppler, who, being duly sworn, declared and acknowledged before me that he is
the President of Cleco Utility Group Inc. and that in such capacity he was duly
authorized to and did execute the foregoing Joint Agreement of Merger on behalf
of said Corporation, for the purposes therein expressed, and as his and said
Corporation's free act and deed.
/s/David M. Eppler
------------------
David M. Eppler
Appearer
SWORN TO AND SUBSCRIBED BEFORE ME
THIS 15th DAY OF DECEMBER, 2000.
/s/ Beatrice P. Newcomb
- -------------------------
Beatrice P. Newcomb
NOTARY PUBLIC
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ACKNOWLEDGMENT AS TO CLECO POWER LLC
STATE OF LOUISIANA
PARISH OF RAPIDES
BEFORE ME, the undersigned authority, personally came and appeared David M.
Eppler, who, being duly sworn, declared and acknowledged before me that he is a
Manager of Cleco Power LLC and that in such capacity he was duly authorized to
and did execute the foregoing Joint Agreement of Merger on behalf of said
limited liability company, for the purposes therein expressed, and as his and
said limited liability company's free act and deed.
/s/David M. Eppler
------------------
David M. Eppler
Appearer
SWORN TO AND SUBSCRIBED BEFORE ME
THIS 15th DAY OF DECEMBER, 2000.
/s/Beatrice P. Newcomb
- ----------------------
Beatrice P. Newcomb
NOTARY PUBLIC
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