AGREEMENT OF MERGER
This AGREEMENT OF MERGER, dated, this ___ day of April, 1999, entered
into pursuant to Section 264 of Title 8 of the General Corporation Law of
Delaware and Section 2B-20(b) of Title 42 of the New Jersey Limited Liability
Company Act, is between Ridgewood Power Corporation, a Delaware corporation (the
"Non-Surviving Corporation") and Ridgewood Power LLC, a New Jersey limited
liability company (the "Surviving Company").
WITNESSETH that:
WHEREAS, the Non-Surviving Corporation and the Surviving Company desire
to merge into a single limited liability company;
NOW, THEREFORE, the parties to this Agreement, in consideration of the
mutual covenants, agreements and provisions hereinafter contained, do hereby
prescribe the terms and conditions of said merger and mode of carrying the same
into effect as follows:
FIRST: The Non-Surviving Corporation hereby merges itself into and with
the Surviving Company, which shall be the surviving company and which shall be
governed by the laws of the State of New Jersey.
SECOND: Upon the filing of the appropriate Certificate of Merger in the
Office of the Secretary of State of Delaware, the separate corporate existence
of the Non-Surviving Corporation shall terminate.
THIRD: The manner of converting the outstanding shares of the capital
stock of the Non-Surviving Corporation, and the membership interests in the
Surviving Company existing prior to the effective date of the merger, into
membership interests in the Surviving Company after the effective date of the
mergers shall be as follows:
(a) All shares of common stock of the Non-Surviving
Corporation which shall be issued and outstanding on the effective date of this
merger, and all rights in respect thereof, shall from and after the effective
date of the merger be converted into 100% of the membership interests in the
Surviving Company, with each such share representing a proportional membership
interest. The rights and obligations of the holders of such shares as members of
the Surviving Company are as set forth in the operating agreement of the
Surviving Company.
(b) Each membership interest of the Surviving Company which
shall be issued and outstanding on the effective date of the merger, and all
rights in respect thereof, shall from and after the effective date of the merger
be converted to cash in the amount of $100.00.
FOURTH: The terms and conditions of the merger are as follows:
(a) The operating agreement of the Surviving Company as it shall exist
on the effective date of this merger shall be and remain the operating agreement
of the Surviving Company after the effective date of the merger until the same
shall be altered, amended or repealed as therein provided.
(b) The manager and officers of the Surviving Company holding offices
immediately prior to the effective date of the merger shall continue in such
offices as the manager and officers of the Surviving Company after the effective
date of the merger until their respective successors shall have been designated
or elected and qualified.
(c) The merger shall become effective upon filing a Certificate of
Merger with the Secretary of State of Delaware and a Certificate of Merger with
the Secretary of State of New Jersey.
(d) Upon the merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and other
assets of every kind and description of the Non-Surviving Corporation shall be
transferred to, vested in and devolve upon the Surviving Company without further
act or deed and all property, rights and every other interest of the
Non-Surviving Corporation and the Surviving Company shall be as effectively the
property of the Surviving Company after the effective date of the merger as they
were of the Non-Surviving Corporation and the Surviving Company respectively
immediately prior to the effective date of the merger. The Non-Surviving
Corporation hereby agrees from time to time, as and when requested by the
Surviving Company or by its successors or assigns, to execute and deliver or
cause to be executed and delivered all such deeds and instruments and to take or
cause to be taken such further or other action as the Surviving Company may deem
necessary or desirable in order to vest in and confirm to the Surviving Company
title to and possession of any property of the Non-Surviving Corporation
acquired or to be acquired by reason of or as a result of the merger herein
provided for and otherwise to carry out the intent and purposes hereof, and the
proper officers and directors of the Non-Surviving Corporation and the proper
officers and directors of the Surviving Company are fully authorized in the name
of the Non-Surviving Corporation or otherwise to take any and all such action.
(e) The Surviving Company may be served with process in the State of
Delaware in any proceeding for enforcement of any obligation of Non-Surviving
Corporation as well as for enforcement of any obligation of the Surviving
Company arising from the merger, including any suit or other proceeding to
enforce the right of any stockholder as determined in appraisal proceedings
pursuant to the provisions of Section 262 of the General Corporation Law of
Delaware, and the Surviving Company does hereby irrevocably appoint the
Secretary of State of Delaware as its agent to accept service of process in any
such suit or other proceeding. The address to which a copy of such process shall
be mailed by the Secretary of State of Delaware is Ms. Mirna Valdes, Assistant
Secretary, Ridgewood Power LLC, 947 Linwood Avenue, Ridgewood, New Jersey,
07450, until the Surviving Company shall have hereafter designated in writing to
the said Secretary of State a different address for such purpose. Service of
such process may be made by personally delivering to and leaving with the
Secretary of State of Delaware duplicate copies of such process, one of which
copies the Secretary of State of Delaware shall forthwith send by registered
mail to Ridgewood Power LLC at the above address.
FIFTH: Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated and abandoned by the President or the Executive
Vice President of any constituent entity at any time prior to the time that this
merger becomes effective.
IN WITNESS WHEREOF, the parties to this Agreement, have caused these
presents to be executed by the President of each party hereto as the respective
act, deed and agreement of each of said entities, on this ___ day of April,
1999.
Ridgewood Power Corporation, a Delaware Corporation
By:__________________________________
Robert E. Swanson, President
Ridgewood Power LLC, a New Jersey Limited Liability Company
By: __________________________________
Robert E. Swanson, President
BTV\128508.2