CONTRIBUTION AGREEMENT BY AND AMONG WESTERN REFINING, INC., REFINERY COMPANY, L.C., RHC HOLDINGS, L.P., WESTERN REFINING GP, LLC, WESTERN REFINING LP, LLC, WRC REFINING COMPANY AND WESTERN REFINING COMPANY, L.P. DATED AS OF _______, 2005
Exhibit 1.2
BY AND AMONG
WESTERN REFINING, INC.,
REFINERY COMPANY, L.C.,
RHC HOLDINGS, L.P.,
WESTERN REFINING GP, LLC,
WESTERN REFINING LP, LLC,
WRC REFINING COMPANY
AND
WESTERN REFINING COMPANY, L.P.
REFINERY COMPANY, L.C.,
RHC HOLDINGS, L.P.,
WESTERN REFINING GP, LLC,
WESTERN REFINING LP, LLC,
WRC REFINING COMPANY
AND
WESTERN REFINING COMPANY, L.P.
DATED AS OF _______, 2005
TABLE OF CONTENTS
Page | ||||||||
ARTICLE I DEFINITIONS | 1 | |||||||
ARTICLE II CONTRIBUTION, EXCHANGE AND MERGER TRANSACTIONS | 4 | |||||||
Section 2.1 | Contribution and Exchange | 4 | ||||||
Section 2.2 | Merger of RC into WRGP | 4 | ||||||
Section 2.3 | WNR Contributions | 4 | ||||||
Section 2.4 | Issuance of New Certificates | 4 | ||||||
Section 2.5 | Certificate Legends | 4 | ||||||
Section 2.6 | Fractional Shares | 5 | ||||||
Section 2.7 | Certain Adjustments | 5 | ||||||
ARTICLE III CLOSING | 5 | |||||||
Section 3.1 | Time and Place | 5 | ||||||
Section 3.2 | Deliveries at Closing | 5 | ||||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE OWNERS AND CONCERNING WRC | 5 | |||||||
Section 4.1 | Organization and Qualification of WRC | 5 | ||||||
Section 4.2 | Capitalization of WRC | 5 | ||||||
Section 4.3 | Authority, Authorization and Enforceability | 6 | ||||||
Section 4.4 | No Violation | 7 | ||||||
Section 4.5 | Title to Assets | 7 | ||||||
Section 4.6 | Litigation | 7 | ||||||
Section 4.7 | Bankruptcy | 7 | ||||||
Section 4.8 | Brokerage Fees and Commissions | 8 | ||||||
Section 4.9 | No Distribution | 8 | ||||||
ARTICLE V REPRESENTATIONS AND WARRANTIES OF WRCRC | 8 | |||||||
Section 5.1 | Organization of WRCRC | 8 | ||||||
Section 5.2 | Authority, Authorization and Enforceability | 8 | ||||||
Section 5.3 | No Violation | 9 | ||||||
Section 5.4 | Litigation | 9 | ||||||
Section 5.5 | No Distribution | 9 | ||||||
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF WNR | 9 | |||||||
Section 6.1 | Organization of WNR | 9 | ||||||
Section 6.2 | Capitalization | 9 | ||||||
Section 6.3 | Authority, Authorization and Enforceability | 10 | ||||||
Section 6.4 | No Violation | 10 | ||||||
Section 6.5 | Litigation | 10 | ||||||
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE PARTNERS | 11 | |||||||
Section 7.1 | Organization of Partners | 11 | ||||||
Section 7.2 | Authority, Authorization and Enforceability | 11 |
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Page | ||||||||
Section 7.3 | No Violation | 11 | ||||||
Section 7.4 | Litigation | 12 | ||||||
Section 7.5 | Bankruptcy | 12 | ||||||
Section 7.6 | Brokerage Fees and Commissions | 12 | ||||||
ARTICLE VIII COVENANTS | 12 | |||||||
Section 8.1 | Ordinary Course of Business | 12 | ||||||
Section 8.2 | Restricted Activities and Transactions | 12 | ||||||
Section 8.3 | Commercially Reasonable Efforts | 14 | ||||||
Section 8.4 | Access to Information | 14 | ||||||
Section 8.5 | Tax Reporting | 14 | ||||||
Section 8.6 | Blue Sky | 14 | ||||||
Section 8.7 | Notification of Certain Matters | 14 | ||||||
Section 8.8 | Further Assurances | 15 | ||||||
ARTICLE IX CONDITIONS | 15 | |||||||
Section 9.1 | Conditions to Obligations of Each Party | 15 | ||||||
ARTICLE X TERMINATION | 16 | |||||||
Section 10.1 | Termination | 16 | ||||||
Section 10.2 | Effect of Termination | 16 | ||||||
Section 10.3 | Fees and Expenses | 16 | ||||||
ARTICLE XI MISCELLANEOUS | 16 | |||||||
Section 11.1 | Waiver and Amendment | 16 | ||||||
Section 11.2 | Nonsurvival of Representations and Warranties | 17 | ||||||
Section 11.3 | Assignment | 17 | ||||||
Section 11.4 | Notices | 17 | ||||||
Section 11.5 | Governing Law | 17 | ||||||
Section 11.6 | Severability | 17 | ||||||
Section 11.7 | Counterparts | 17 | ||||||
Section 11.8 | Headings | 17 | ||||||
Section 11.9 | Enforcement of the Agreement | 17 | ||||||
Section 11.10 | Entire Agreement; Third Party Beneficiaries | 18 | ||||||
Exhibit A – Agreement and Plan of Merger |
-ii-
This CONTRIBUTION AGREEMENT, dated as of ___, 2005 (this “Agreement”), is by and
among Western Refining, Inc., a Delaware corporation (“WNR”), Refinery Company, L.C., a
Texas limited liability company (“RC”), RHC Holdings, L.P., a Texas limited partnership
(“RHC” and collectively with RC, the “Owners”), Western Refining GP, LLC, a
Delaware limited liability company (“WRGP”), Western Refining LP, LLC, a Delaware limited
liability company (“WRLP” and collectively with WRGP, the “Partners”), Western
Refining Company, L.P., a Delaware limited partnership (“WRC”), and WRC Refining Company, a
Texas corporation (“WRCRC” and collectively with RHC, the “Stockholders”).
W I T N E S S E T H:
WHEREAS, RC, as the sole general partner, and RHC, as the sole limited partner, currently own
all of the outstanding partnership interests of WRC; and
WHEREAS, WNR owns all of the outstanding limited liability company interests in each of the
Partners; and
WHEREAS, the Stockholders currently own all of the issued and outstanding common stock, $0.01
par value, of WNR (the “Common Stock”), with WRCRC owning 1 share and RHC owning 99 shares;
and
WHEREAS, the parties desire to effect a business combination whereby WRC shall become an
indirect wholly-owned subsidiary of WNR and RC shall become a wholly owned subsidiary of WNR and be
merged with and into WRGP in exchange for which WRCRC and RHC shall receive additional Common Stock
to be issued by WNR at the effective time of such business combination; and
WHEREAS, pursuant to such business combination, WNR shall authorize the issuance of
shares (the “Shares”) of its Common Stock in exchange for all of the outstanding membership
interests in RC and all of the outstanding limited partner interests in WRC.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
The terms set forth below in this Article I shall have the meanings ascribed to them below or
in the part of this Agreement referred to below:
“Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the general
rules and regulations under the Securities Exchange Act of 1934, as in effect on the date of this
Agreement.
“Agreement” has the meaning set forth in the introductory paragraph hereto.
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“Board” means the board of directors of WNR.
“Business Day” means any day other than a Saturday, a Sunday or any other day when
banks are not open for business generally in the State of Delaware.
“Closing” has the meaning set forth in Section 3.1.
“Closing Date” has the meaning set forth in Section 3.1.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Stock” has the meaning set forth in the Recitals hereto.
“Delaware LP Act” means the Revised Uniform Limited Partnership Act of the State of
Delaware, as amended.
“DGCL” means the General Corporation Law of the State of Delaware, as amended.
“Effective Time” means immediately prior to the closing under the Underwriting
Agreement.
“Governmental Authorities” means the federal, state, county, city and political
subdivisions in which any property of WRC, any Partner, any Owner or WNR, respectively, is located
or which exercises jurisdiction over any such property or entity, and any agency, department,
commission, board, bureau or instrumentality of any of them which exercises jurisdiction over any
such property or entity.
“IPO” means the initial public offering of the Common Stock contemplated by the
Registration Statement.
“Lien” means a lien, mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, easement, preference, priority, assessment, security interest, lease,
sublease, charge, claim, adverse claim, levy, interest of other Persons or other encumbrance of any
kind.
“Loan Documents” means (a) that certain Amended and Restated Term Loan Agreement,
dated as of July 29, 2005, among WRC, each lender from time to time party thereto, and Bank of
America, N.A. and (b) that certain Revolving Credit Agreement, dated as of July 29, 2005, among
WRC, each lender from time to time party thereto, and Bank of America, N.A.
“Material Adverse Effect” means a material adverse effect on the combined business,
operations, properties (including intangible properties), assets, operating results, financial
condition or liabilities of WNR, WRGP and WRLP, taken as a whole, or the specified Person, as
applicable; provided, however, that a general decline in the business of the refinery industry as a
whole shall not be deemed to be a Material Adverse Effect.
2
“Owners” has the meaning set forth in the introductory paragraph hereto.
“Partners” has the meaning set forth in the introductory paragraph hereto.
“Permitted Liens” means (a) Liens (including mechanics’, workers’, repairers’,
materialmens’, warehousemens’, landlord’s and other similar Liens) arising in the ordinary course
of business that would not individually or in the aggregate materially adversely affect the value
of, or materially adversely interfere with the use of, the property subject to them and (b) Liens
arising under, or in connection with, the Loan Documents.
“Person” means an individual, corporation, partnership (limited or general), limited
liability company, trust, joint stock company, Governmental Authority, unincorporated association
or other legal entity.
“RC” has the meaning set forth in the introductory paragraph hereto.
“Registration Statement” means that certain Registration Statement on Form S-1, SEC
File No. 333-128629, relating to the Common Stock as filed with the SEC by WNR, and any amendments
thereto.
“RHC” has the meaning set forth in the introductory paragraph hereto.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Shares” has the meaning set forth in the Recitals hereto.
“Stockholders” has the meaning set forth in the Recitals hereto.
“TBCA” means the Texas Business Corporation Act.
“Underwriting Agreement” has the meaning set forth in Section 9.1(c).
“WNR” has the meaning set forth in the introductory paragraph hereto.
“WRC” has the meaning set forth in the introductory paragraph hereto.
“WRC Partnership Agreement” means that certain Second Amended and Restated Limited
Partnership Agreement of WRC, dated as of August 29, 2003.
“WRCRC” has the meaning set forth in the introductory paragraph hereto.
“WRGP” has the meaning set forth in the introductory paragraph hereto.
“WRGP LLC Agreement” means that certain Amended and Restated Limited Liability Company
Agreement of WRGP, dated as of November 21, 2005.
“WRLP” has the meaning set forth in the introductory paragraph hereto.
3
“WRLP LLC Agreement” means that certain Limited Liability Company Agreement of WRLP,
dated as of November 2, 2005.
ARTICLE II
CONTRIBUTION, EXCHANGE AND MERGER TRANSACTIONS
CONTRIBUTION, EXCHANGE AND MERGER TRANSACTIONS
Section 2.1 Contribution and Exchange. Immediately prior to the Effective Time, (a)
WRCRC shall contribute to WNR all of the outstanding membership interests in RC in exchange for
which WNR will issue to WRCRC 1% of the Shares, and (b) RHC shall contribute to WNR all of the
outstanding limited partner interests in WRC in exchange for which WNR will issue to WRCRC 99% of
the Shares.
Section 2.2 Merger of RC into WRGP. Immediately prior to the Effective Time, but
after completion of the transactions set forth in Section 2.1(a), RC shall merge, pursuant to an
agreement and plan of merger, substantially in the form attached hereto as Exhibit A, with
and into WRGP.
Section 2.3 WNR Contributions. Immediately prior to the Effective Time, but after
completion of the transactions set forth in Section 2.1(b), WNR shall contribute all of the
outstanding limited partner interests in WRC received from RHC to WRLP as a capital contribution.
Section 2.4 Issuance of New Certificates. At the Closing, WNR shall issue to each
Stockholder a certificate or certificates representing the number of Shares issued to such Person
pursuant to Section 2.1.
Section 2.5 Certificate Legends. The certificates evidencing the Common Stock
delivered pursuant to Section 2.4 Section 2.3 shall bear a legend substantially in the form set
forth below and containing such other information as WNR may deem necessary or appropriate:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND NEITHER THE SECURITIES NOR
ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
AND SUCH LAWS OR PURSUANT TO AN EXEMPTION THEREFROM, WHICH, IN THE OPINION OF
COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO
COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
4
Section 2.6 Fractional Shares. No fractional shares of Common Stock or scrip shall be
issued as a result of the transactions contemplated by Section 2.1. Instead of any fractional
share of Common Stock which would otherwise be issuable as a result of the such transactions, WNR
shall pay a cash adjustment in respect of such fractional interest in a per share amount equal to
the initial public offering price of the Common Stock.
Section 2.7 Certain Adjustments. The Board may adjust the number of Shares to be
received by each Stockholder pursuant to Section 2.1 in order to reflect a capitalization of WNR
that the Board reasonably determines to be in the best interests of WNR and its stockholders based
on the actual pricing of the IPO; provided, however, that any such adjustment shall be made on a
pro rata basis in accordance with the relative percentages of total outstanding shares of Common
Stock contemplated by Section 2.1.
ARTICLE III
CLOSING
CLOSING
Section 3.1 Time and Place. The closing of the transactions contemplated hereby (the
“Closing”) shall be held at the offices of Xxxxxxx Xxxxx LLP, 000 Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000 upon satisfaction or waiver of the conditions contained in Article IX and
immediately prior to the Effective Time, or at such other place or time as the parties hereto may
mutually agree. The date of the Closing is referred to herein as the “Closing Date.”
Section 3.2 Deliveries at Closing. Subject to the provisions of Article IX hereof, at
the Closing, there shall be delivered the certificates and other documents required to be delivered
pursuant to Article IX hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE OWNERS
AND CONCERNING WRC
REPRESENTATIONS AND WARRANTIES OF THE OWNERS
AND CONCERNING WRC
Each Owner represents and warrants to the other parties to this Agreement, with respect to
itself and WRC, that the statements contained in this Article IV are correct and complete as of the
date hereof.
Section 4.1 Organization and Qualification of WRC. WRC is a limited partnership duly
organized under the Delaware LP Act and is validly existing and in good standing under the laws of
the State of Delaware. WRC has all requisite limited partnership power and authority to own,
operate or lease its properties and to carry on its business as now being conducted. WRC is duly
qualified to do business as a foreign limited partnership and is in good standing in each
jurisdiction where the character of its properties owned, operated or leased, or the nature of its activities, makes such qualifications
necessary, except where the failure to be so qualified and in good standing will not have a
Material Adverse Effect.
Section 4.2 Capitalization of WRC.
(a) RC is the sole general partner of WRC, with a 1% general partner interest in WRC; such
general partner interest has been duly authorized and validly issued in accordance with the WRC
Partnership Agreement and is owned by RC free and clear of all Liens (other than
5
those arising
under this Agreement and restrictions on sales to the public of securities under applicable
securities laws) and has no outstanding agreement, understanding or obligation to sell, transfer or
deliver such general partner interest.
(b) RHC is the sole limited partner of WRC, with a 99% limited partner interest in WRC; such
limited partner interest has been duly authorized and validly issued in accordance with the WRC
Partnership Agreement and is fully paid (to the extent required under the WRC Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by the relevant
provisions of the Delaware LP Act); and RHC owns such limited partner interest free and clear of
all Liens (other than those arising under this Agreement and restrictions on sales to the public of
securities under applicable securities laws) and has no outstanding agreement, understanding or
obligation to sell, transfer or deliver such limited partner interest.
(c) There are no outstanding subscriptions, options, calls, contracts, commitments,
understandings, restrictions, arrangements, rights or warrants, including any right of conversion
or exchange under any outstanding security, instrument or other agreement obligating WRC to issue,
deliver or sell, or cause to be issued, delivered or sold, additional partnership interests in WRC.
Section 4.3 Authority, Authorization and Enforceability.
(a) Each of WRC and each Owner has the requisite power and authority to execute and deliver
this Agreement and each instrument required hereby to be executed and delivered by it at the
Closing, to perform its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby.
(b) The execution and delivery by RC of this Agreement and each instrument required hereby to
be executed and delivered by it at the Closing and the performance of its obligations hereunder and
thereunder have been duly and validly authorized by the board of managers of RC, and no other
company actions by RC or its members are necessary to authorize the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(c) The execution and delivery by RHC of this Agreement and each instrument required hereby to
be executed and delivered by it at the Closing and the performance of its obligations hereunder and thereunder have been duly and validly authorized by its
general partner and all of its limited partners, and no other partnership actions by RHC or its
partners are necessary to authorize the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(d) The execution and delivery by WRC of this Agreement and each instrument required hereby to
be executed and delivered by it at the Closing and the performance of its obligations hereunder and
thereunder have been duly and validly authorized by each of the Owners, and no other partnership
actions by WRC or any Owner are necessary to authorize the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
6
(e) This Agreement and each instrument required hereby have been duly executed and delivered
by WRC and each Owner and (assuming due authorization, execution and delivery hereof and thereof by
the other parties hereto and thereto) constitute the valid and legally binding obligations of WRC
and each Owner, enforceable against WRC and each Owner in accordance with their terms, except that
(i) such enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or
other laws, decisions or equitable principles now or hereafter in effect relating to or affecting
the enforcement of creditors’ rights or debtors’ obligations generally, and to general equity
principles, and (ii) the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
Section 4.4 No Violation. Assuming effectuation of all filings and registrations
with, termination or expiration of any applicable waiting periods imposed by, and receipt of all
permits and orders of Governmental Authorities required in connection with the consummation of the
transactions contemplated by this Agreement, and the receipt of all approvals or consents required
to be obtained from third parties other than WRC and the Owners (none of which the failure to
obtain would, individually or in the aggregate, have a material adverse effect on the ability of
WRC or any Owner to consummate the transactions contemplated by this Agreement), neither the
execution and delivery by WRC or the Owners of this Agreement or any instrument required hereby to
be executed and delivered by them at the Closing nor the performance by WRC or the Owners of their
obligations hereunder or thereunder will (a) violate or breach the terms of, or cause a default
under, or result in the termination of, or accelerate the performance required by, or result in a
right of termination, cancellation or acceleration of any obligation under, or result in the
creation of any Lien upon, any of the properties or assets of WRC or the partnership interests in
WRC held by any Owner under (i) any law, regulation or order of any Governmental Authority
applicable to WRC or any Owner, (ii) the WRC Partnership Agreement or the partnership agreement,
limited liability company agreement or similar organizational document of any Owner, or (iii)
except for the Loan Documents, any contract, agreement or other instrument or obligation to which
WRC or any Owner is a party or by which it or any of its properties or assets is bound, or (b) with
the passage of time, the giving of notice or the taking of any action by a third party, have any of
the effects set forth in clause (a) of this Section 4.4, except in any such case for any matters
described in this Section 4.4 that would not have a Material Adverse Effect.
Section 4.5 Title to Assets. WRC has good and indefeasible title to all of its assets
and properties, free and clear of all Liens, except for Permitted Liens.
Section 4.6 Litigation. There are no suits, actions, proceedings or investigations
pending or threatened against WRC or any Owner (a) seeking to prevent or delay the Closing or (b)
that, individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect on WRC or any Owner’s ability to perform its obligations with respect to the transactions
contemplated by this Agreement. WRC is not subject to any continuing court or administrative
order, writ, injunction or decree applicable to it or its assets. There are no judgments against
WRC or any Owner.
Section 4.7 Bankruptcy. There are no bankruptcy, reorganization or rearrangement
proceedings under any bankruptcy, insolvency, reorganization, moratorium or other similar laws
7
with respect to creditors pending against, being contemplated by, or, to the knowledge of any Owner,
threatened against WRC or any Owner.
Section 4.8 Brokerage Fees and Commissions. Neither WRC nor any Owner has, directly
or indirectly, incurred any obligation or entered into any agreement for any investment banking,
brokerage or finder’s fee or commission in connection with this Agreement for which any of the
other parties hereto shall incur any liability.
Section 4.9 No Distribution. RHC is an experienced and knowledgeable investor in the
refinery industry, is able to bear the economic risks of its acquisition and ownership of the
Common Stock and is capable of evaluating (and has evaluated) the merits and risks of WNR and the
acquisition and ownership of the Common Stock. Prior to entering into this Agreement, RHC had the
opportunity to obtain the advice of Persons, such as legal and tax advisors, that it deemed
appropriate concerning the transactions contemplated by this Agreement. RHC will acquire the
Common Stock for its own account and not with a view to a sale or distribution thereof in violation
of the Securities Act, and the rules and regulations thereunder, any applicable state blue sky laws
or any other applicable securities laws.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WRCRC
REPRESENTATIONS AND WARRANTIES OF WRCRC
WRCRC represents and warrants to the other parties to this Agreement that the statements
contained in this Article V are correct and complete as of the date hereof.
Section 5.1 Organization of WRCRC. WRCRC is a corporation duly organized under the TBCA and is validly existing and in good
standing under the laws of the State of Texas.
Section 5.2 Authority, Authorization and Enforceability.
(a) WRCRC has all requisite corporate power and authority to execute and deliver this
Agreement and each instrument required hereby to be executed and delivered by it at the Closing, to
perform its obligations hereunder and thereunder and to consummate the transactions contemplated
hereby and thereby.
(b) The execution and delivery by WRCRC of this Agreement and each instrument required hereby
to be executed and delivered by it at the Closing and the performance of its obligations hereunder
and thereunder have been duly and validly authorized by its board of directors, and no other
corporate actions by WRCRC or its stockholders are necessary to authorize the execution and
delivery of this Agreement or the consummation of the transactions contemplated hereby.
(c) This Agreement and each instrument required hereby have been duly executed and delivered
by WRCRC and (assuming due authorization, execution and delivery hereof and thereof by the other
parties hereto and thereto) constitute the valid and legally binding obligations of WRCRC,
enforceable against WRCRC in accordance with their terms, except that (i) such enforceability may
be subject to bankruptcy, insolvency, reorganization, moratorium or other laws, decisions or
equitable principles now or hereafter in effect relating to or affecting the enforcement of
creditors’ rights or debtors’ obligations generally, and to general equity
8
principles, and (ii) the
remedy of specific performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any proceeding therefor may be
brought.
Section 5.3 No Violation. Assuming effectuation of all filings and registrations
with, termination or expiration of any applicable waiting periods imposed by and receipt of all
permits and orders of, Governmental Authorities required in connection with the consummation of the
transactions contemplated by this Agreement, neither the execution and delivery by WRCRC of this
Agreement or any instrument required hereby to be executed and delivered by it at the Closing nor
the performance by WRCRC of its obligations hereunder or thereunder will (a) violate, or breach the
terms of, or cause a default under (i) any law, regulation or order of any Governmental Authority
applicable to WRCRC or (ii) WRCRC’s certificate of incorporation and bylaws or (b) with the passage
of time, the giving of notice or the taking of any action by a third party, have any of the effects
set forth in clause (a) of this Section 6.4, except in any such case for any matters described in
this Section 6.4 that would not have an Material Adverse Effect.
Section 5.4 Litigation. There are no suits, actions, proceedings or investigations
pending or threatened against WRCRC (a) seeking to prevent or delay the Closing or (b) that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on WRCRC’s ability to perform
its obligations with respect to the transactions contemplated by this Agreement. WRCRC is not
subject to any continuing court or administrative order, writ, injunction or decree applicable to
it. There are no judgments against WRCRC.
Section 5.5 No Distribution. WRCRC is an experienced and knowledgeable investor in the
refinery industry, is able to bear the economic risks of its acquisition and ownership of the
Common Stock and is capable of evaluating (and has evaluated) the merits and risks of WNR and the
acquisition and ownership of the Common Stock. Prior to entering into this Agreement, WRCRC had
the opportunity to obtain the advice of Persons, such as legal and tax advisors, that it deemed
appropriate concerning the transactions contemplated by this Agreement. WRCRC will acquire the
Common Stock for its own account and not with a view to a sale or distribution thereof in violation
of the Securities Act, and the rules and regulations thereunder, any applicable state blue sky laws
or any other applicable securities laws.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF WNR
REPRESENTATIONS AND WARRANTIES OF WNR
WNR represents and warrants to the other parties to this Agreement that the statements
contained in this Article VII are correct and complete as of the date hereof.
Section 6.1 Organization of WNR. WNR is a corporation duly organized under the DGCL
and is validly existing and in good standing under the laws of the State of Delaware. WNR is a
recently formed corporation and has no assets, liabilities, business or operations.
Section 6.2 Capitalization.
(a) The authorized capital stock of WNR consists of 240,000,000 shares of Common Stock, of
which 100 shares are issued and outstanding. All of the outstanding shares of Common Stock are
duly authorized, validly issued, fully paid and nonassessable, and were not issued in violation of
the preemptive rights of any Person.
9
(b) Except with respect to the IPO or as contemplated in the Registration Statement, there are
no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions,
arrangements, rights or warrants, including any right of conversion or exchange under any
outstanding security, instrument or other agreement obligating WNR or any subsidiary of WNR to
issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the capital
stock of WNR or any subsidiary of WNR or obligating WNR or any subsidiary of WNR to grant, extend
or enter into any such agreement or commitment.
Section 6.3 Authority, Authorization and Enforceability.
(a) WNR has all requisite corporate power and authority to execute and deliver this Agreement
and each instrument required hereby to be executed and delivered by it at the Closing, to perform
its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and
thereby.
(b) The execution and delivery by WNR of this Agreement and each instrument required hereby to
be executed and delivered by it at the Closing and the performance of its obligations hereunder and
thereunder have been duly and validly authorized by the Board, and no other corporate actions by
WNR or its stockholders are necessary to authorize the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
(c) This Agreement and each instrument required hereby have been duly executed and delivered
by WNR and (assuming due authorization, execution and delivery hereof and thereof by the other
parties hereto and thereto) constitute the valid and legally binding obligations of WNR,
enforceable against WNR in accordance with their terms, except that (i) such enforceability may be
subject to bankruptcy, insolvency, reorganization, moratorium or other laws, decisions or equitable
principles now or hereafter in effect relating to or affecting the enforcement of creditors’ rights
or debtors’ obligations generally, and to general equity principles, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor may be brought.
Section 6.4 No Violation. Assuming effectuation of all filings and registrations
with, termination or expiration of any applicable waiting periods imposed by and receipt of all
permits and orders of, Governmental Authorities required in connection with the consummation of the
transactions contemplated by this Agreement, neither the execution and delivery by WNR of this
Agreement or any instrument required hereby to be executed and delivered by it at the Closing nor
the performance by WNR of its obligations hereunder or thereunder will (a) violate, or breach the
terms of, or cause a default under (i) any law, regulation or order of any Governmental Authority
applicable to WNR or (ii) WNR’s certificate of incorporation and bylaws or (b) with the passage of
time, the giving of notice or the taking of any action by a third party, have any of the effects
set forth in clause (a) of this Section 6.4, except in any such case for any matters described in
this Section 6.4 that would not have an Material Adverse Effect.
Section 6.5 Litigation. There are no suits, actions, proceedings or investigations
pending or threatened against WNR (a) seeking to prevent or delay the Closing or (b) that,
10
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on
WNR’s ability to perform its obligations with respect to the transactions contemplated by this
Agreement. WNR is not subject to any continuing court or administrative order, writ, injunction or decree applicable to it.
There are no judgments against WNR.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE PARTNERS
REPRESENTATIONS AND WARRANTIES OF THE PARTNERS
Each Partner represents and warrants to the other parties hereto that the statements contained
in this Article VII are correct and complete as of the date hereof.
Section 7.1 Organization of Partners. Each Partner is a limited liability company
duly organized under the Delaware LLC Act and is validly existing and in good standing under the
laws of the State of Delaware.
Section 7.2 Authority, Authorization and Enforceability.
(a) The Partners each have the requisite power and authority to execute and deliver this
Agreement and each instrument required hereby to be executed and delivered by it at the Closing, to
perform its obligations hereunder and thereunder and to consummate the transactions contemplated
hereby and thereby.
(b) The execution and delivery by each Partner of this Agreement and each instrument required
hereby to be executed and delivered by it at the Closing and the performance of its obligations
hereunder and thereunder have been duly and validly authorized by the board of managers of each of
Partner, and no other company actions by the Partners or their sole member are necessary to
authorize the execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(c) This Agreement and each instrument required hereby have been duly executed and delivered
by each Partner and (assuming due authorization, execution and delivery hereof and thereof by the
other parties hereto and thereto) constitute the valid and legally binding obligations of each
Partner, enforceable against each Partner in accordance with their terms, except that (i) such
enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or other laws,
decisions or equitable principles now or hereafter in effect relating to or affecting the
enforcement of creditors’ rights or debtors’ obligations generally, and to general equity
principles, and (ii) the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
Section 7.3 No Violation. Assuming effectuation of all filings and registrations
with, termination or expiration of any applicable waiting periods imposed by, and receipt of all
permits and orders of Governmental Authorities required in connection with the consummation of the
transactions contemplated by this Agreement, and the receipt of all approvals or consents required
to be obtained from third parties other than the Partners (none of which the failure to obtain
would, individually or in the aggregate, have a material adverse effect on the ability of any Partner
to consummate the transactions contemplated by this Agreement), neither the execution and delivery
by the Partners of this Agreement or any instrument required hereby to be
11
executed and delivered by
it at the Closing nor the performance by any Partner of its obligations hereunder or thereunder
will (a) violate or breach the terms of or cause a default under, or result in the termination of,
or accelerate the performance required by, or result in a right of termination, cancellation or
acceleration of any obligation under, or result in the creation of any Lien upon, any of the
properties or assets of the Partners under (i) any law, regulation or order of any Governmental
Authority applicable to any Partner, (ii) the certificate of formation, limited liability company
agreement or similar organizational document of any Partner, or (iii) any contract, agreement or
other instrument or obligation to which any Partner is a party or by which it or any of its
properties or assets is bound, or (b) with the passage of time, the giving of notice or the taking
of any action by a third party, have any of the effects set forth in clause (a) of this Section
4.4, except in any such case for any matters described in this Section 4.4 that would not have a
Material Adverse Effect.
Section 7.4 Litigation. There are no suits, actions, proceedings or investigations
pending or threatened against any Partner (a) seeking to prevent or delay the Closing or (b) that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on
the ability of any Partner to perform its obligations with respect to the transactions contemplated
by this Agreement. Neither Partner is subject to any continuing court or administrative order,
writ, injunction or decree applicable to it or its assets. There are no judgments against any
Partner.
Section 7.5 Bankruptcy. There are no bankruptcy, reorganization or rearrangement
proceedings under any bankruptcy, insolvency, reorganization, moratorium or other similar laws with
respect to creditors pending against, being contemplated by, or, to the knowledge of any Partner,
threatened against any Partner.
Section 7.6 Brokerage Fees and Commissions. No Partner has, directly or indirectly,
incurred any obligation or entered into any agreement for any investment banking, brokerage or
finder’s fee or commission in connection with this Agreement for which any of the other parties
hereto shall incur any liability.
ARTICLE VIII
COVENANTS
COVENANTS
Section 8.1 Ordinary Course of Business. Between the date of this Agreement and the
earlier to occur of the Effective Time or the termination of this Agreement, each Owner shall cause
WRC to carry on its business diligently and in the ordinary course and consistent with past
practice, and, without limiting the generality of the foregoing, the Owners shall use commercially
reasonable efforts to preserve the business organization of WRC intact, keep available the services of its present officers and employees
and preserve its present relationships with persons having business dealings with it.
Section 8.2 Restricted Activities and Transactions. Except as otherwise contemplated
herein or in the Registration Statement, between the date of this Agreement and the earlier to
occur of the Effective Time or the termination of this Agreement, (a) the Owners shall not sell,
transfer or otherwise deliver their respective partnership interests in WRC, and (b) WNR shall not,
and the Owners shall cause WRC not to:
12
(i) issue or commit to issue any of its capital stock, partnership interests or other
ownership or equity interests;
(ii) grant or commit to grant any options, warrants, convertible securities or other rights to
subscribe for, purchase or otherwise acquire any shares of its capital stock, partnership interests
or other ownership or equity interests;
(iii) declare, set aside, or pay any dividend or distribution or make any other payment with
respect to its capital stock, partnership interests or other ownership interests except in the
ordinary course and consistent with past practice;
(iv) directly or indirectly redeem, purchase or otherwise acquire or commit to acquire any of
its capital stock, partnership interests or other ownership or equity interests;
(v) effect a split or reclassification of any of its capital stock or a recapitalization or
other reorganization;
(vi) amend or otherwise alter its certificate of incorporation, bylaws, certificate of limited
partnership or limited partnership agreement or other governing instruments;
(vii) enter into or make any change in any of its employee benefit plans or grant any increase
in compensation (other than increases in compensation in the ordinary course of business), or
provide any special severance arrangement involving any of its employees, officers or directors;
(viii) create, assume or permit to exist any Lien on any of its assets, tangible or
intangible, except (A) Permitted Liens or (B) in the ordinary course of business consistent with
past practice;
(ix) except in the ordinary course of business consistent with past practice or as otherwise
contemplated or permitted in this Agreement or the Registration Statement, (A) borrow, or agree to
borrow, any funds or voluntarily incur, assume or become subject to, whether directly or by way of
guaranty or otherwise, any obligation or liability (absolute or contingent) in excess of
$5,000,000, except as permitted under its existing credit facilities and in connection with any
renewal, modification or rearrangement thereof which is on terms and conditions not materially less
favorable to the respective borrower and which does not provide for an increase in the maximum
borrowing amount, (B) cancel or agree to cancel any debts or claims, (C) lease, sublease, sell or
transfer, agree to sublease, sell or transfer, or grant or agree to grant any preferential rights to lease or acquire, any of its assets, property or rights
having a fair market value in excess of $2,000,000 or (D) make or permit any material amendment or
termination of any material contract, agreement, license or other right to which it is a party;
(x) settle any threatened or pending litigation that is not fully covered by insurance other
than for immaterial consideration or for an amount less than that reserved as of the date hereof
for such litigation on its books and records; or
(xi) commit itself to do any of the foregoing.
13
Section 8.3 Commercially Reasonable Efforts. Upon the terms and subject to the
conditions hereof, each of the parties hereto agrees to use its commercially reasonable efforts to
take, or cause to be taken, all appropriate action, and to do or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions as contemplated by
this Agreement and to cooperate in connection with the foregoing, including commercially reasonable
efforts:
(a) to obtain any necessary waivers, consents and approvals from other parties to material
notes, licenses, agreements and other instruments and obligations;
(b) to obtain any material consents, approvals, authorizations and permits required to be
obtained under any federal, state or local statute, rule or regulation;
(c) to defend all lawsuits or other legal proceedings challenging this Agreement or the
consummation of the transactions as contemplated hereby; and
(d) to effect promptly all necessary filings and notifications and prompt submissions of
information requested by Governmental Authorities.
Section 8.4 Access to Information. From the date hereof to the Effective Time, each
of the parties hereto shall afford the officers, employees and representatives of the other
parties, complete access at all reasonable times to its respective officers, employees, agents,
properties, books and records, as applicable, and shall furnish the others all financial, operating
and other data and information as the others, through their officers, employees or representatives,
may reasonably request.
Section 8.5 Tax Reporting. Each of RC and WRGP agrees to file IRS Form 8832 with the IRS
in a timely manner electing effective one day before the Effective Time to treat RC and WRGP,
respectively, as an association taxable as a corporation for federal income tax purposes as
provided in Treas. Reg. § 301.7701-3(c). Each of the parties hereto agrees to treat for federal
income tax purposes the consummation of the transactions described in Section 2.1 as the
contribution of the membership interests in RC and of the limited partner interest in WRC to WNR in
exchange for the Shares as a transaction constituting an exchange described in Section 351(a) of
the Code. Each of the parties hereto agrees to treat WRLP as a disregarded entity for federal
income tax purposes as provided in Treas. Reg. § 301.7701-3(b)(1)(ii), and no election will be made to treat WRLP as an
association taxable as a corporation for federal income tax purposes. Each party will report in
its federal income tax return for its taxable year which includes the Effective Time all
information required to be reported to the Internal Revenue Service with respect to the
transactions contemplated hereby pursuant to applicable Internal Revenue Service form instructions
or federal income tax regulations.
Section 8.6 Blue Sky. WNR shall use commercially reasonable efforts to obtain, prior
to the Effective Time, all necessary blue sky approvals required to permit the issuance of Common
Stock in accordance with the provisions of this Agreement.
Section 8.7 Notification of Certain Matters. Each party hereto will give prompt
notice of (a) the occurrence or non-occurrence of any event, the occurrence or non-occurrence of
which would be likely to cause any representation or warranty of such Person contained herein to be
14
untrue or inaccurate in any material respect at or prior to the Effective Time, (b) any material
failure of any such Person to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by such Person hereunder and (c) any material adverse change in the
business, operations, operating results or financial condition of such party. The delivery or
deemed delivery of any notice pursuant to this Section 8.7 shall not be deemed to (x) modify the
representations or warranties hereunder of the party delivering such notice, (y) modify the
conditions set forth in Article IX, or (z) limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
Section 8.8 Further Assurances. The parties hereto agree to execute and deliver, or
cause to be executed and delivered, such further instruments or documents or take such other action
as may be reasonably necessary or convenient to carry out the transactions contemplated hereby.
ARTICLE IX
CONDITIONS
CONDITIONS
Section 9.1 Conditions to Obligations of Each Party. Notwithstanding any other
provision of this Agreement, the respective obligations of each party to effect the transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing Date
of the following conditions:
(a) no order shall have been entered and remained in effect in any action or proceeding before
any federal, foreign or state court or Governmental Authority that would prevent or make illegal
the consummation of the transactions contemplated herein;
(b) the Registration Statement shall be effective on the Closing Date and all post-effective
amendments filed shall have been declared effective or shall have been withdrawn, and no stop order
suspending the effectiveness thereof shall have been issued and no proceedings
for that purpose shall have been initiated or, to the knowledge of the parties, threatened by
the SEC;
(c) WNR and the underwriters named in the Registration Statement shall have executed an
underwriting agreement for a firm commitment underwriting as described in the Registration
Statement (the “Underwriting Agreement”);
(d) all other approvals of Persons shall have been obtained (i) the granting of which is
necessary for the consummation of the transactions contemplated herein and (ii) the non-receipt of
which will have a Material Adverse Effect;
(e) the representations and warranties of the parties hereto contained in this Agreement shall
have been true and correct as of the date of execution of this Agreement, except for such failures
to be true which (i) have been cured prior to the Closing Date or (ii) do not, in the aggregate,
constitute a Material Adverse Effect;
(f) the agreements and covenants of the parties hereto to be complied with or performed on or
before the Closing Date pursuant to the terms hereof shall have been duly
15
complied with or
performed, except for such failures to comply or perform which do not, in the aggregate, constitute
a Material Adverse Effect;
(g) no Material Adverse Effect shall have occurred since the date of this Agreement;
(h) each of the Owners shall have withdrawn as partners from WRC in accordance with the WRC
Partnership Agreement and the Delaware LP Act; and
(i) WRGP shall be admitted as the sole general partner of WRC and WRLP shall be admitted as
the sole limited partner of WRC, each in accordance with the WRC Partnership Agreement.
ARTICLE X
TERMINATION
TERMINATION
Section 10.1 Termination. This Agreement may be terminated, and the transactions
contemplated herein may be abandoned, at any time prior to the Effective Time:
(a) by any party hereto in the event of a Material Adverse Effect that is incapable of being
cured, remedied or reversed within 90 days of such event, provided that such party or its
operations are not responsible for the occurrence of such Material Adverse Effect;
(b) by any party hereto if the Effective Time shall not have occurred on or before March 1,
2006 (unless the Effective Time has not occurred as the result of a breach of the terms hereof by
the party desiring to exercise the termination right, which date may be extended by mutual
agreement of the parties hereto); or
(c) by any party hereto if a final unappealable order to restrain, enjoin or otherwise
prevent, or awarding substantial damages in connection with, consummation of this Agreement or the
transactions contemplated in connection herewith shall have been entered.
Section 10.2 Effect of Termination. In the event of any termination of this Agreement
pursuant to Section 10.1, the parties hereto shall have no obligation or liability to any other
party hereto except the provisions of this Section and Section 10.3, Section 11.5, Section 11.6,
Section 11.9 and Section 11.10 hereof shall survive any such termination and, except as provided in
this Section 10.2, all documents executed in connection with this Agreement shall be null and void.
Section 10.3 Fees and Expenses. Each party hereto shall be responsible for its own
fees and expenses incurred in connection with this Agreement and the transactions contemplated
hereby.
ARTICLE XI
MISCELLANEOUS
MISCELLANEOUS
Section 11.1 Waiver and Amendment. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits thereof. This Agreement may not
16
be amended
or supplemented at any time, except by an instrument in writing signed on behalf of each party
hereto.
Section 11.2 Nonsurvival of Representations and Warranties. No representation and
warranty made in this Agreement shall survive the Effective Time. This Section 11.2 shall not
limit the term of any covenant or agreement which by its terms contemplates performance after the
Effective Time.
Section 11.3 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective successors, heirs,
devisees and assigns. Except as set forth in this Agreement, this Agreement shall not be
assignable until after the Closing Date by the parties hereto, except with the prior written
consent of the other parties.
Section 11.4 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered if
delivered in person, by cable, telegram, telex or telecopy and shall be deemed to have been duly
given three business days after deposit with a United States post office if delivered by registered
or certified mail (postage prepaid, return receipt requested) to the applicable party at 0000
Xxxxxxxxxx Xxxxx, Xx Xxxx, Xxxxx 00000, with a copy to Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxx LLP, 000
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, or to such other address as any party may have furnished
to the others in writing in accordance herewith, except that notices of change of address shall only
be effective upon receipt.
Section 11.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Delaware.
Section 11.6 Severability. If any term or other provisions of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect as
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner material to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible.
Section 11.7 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original document, but all of which together shall constitute one and the same
agreement.
Section 11.8 Headings. The Section headings herein are for convenience only and are
not intended to be part of or to affect the meaning or interpretation of the Agreement.
Section 11.9 Enforcement of the Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or otherwise breached. It is accordingly agreed that the
parties hereto shall be entitled to any injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof, this being in addition to
any other remedies to which they are entitled at law or in equity. In addition, each of
17
the
parties hereto consents to submit itself to the personal jurisdiction of any federal or state court
sitting in the State of Delaware in the event that any dispute arises out of this Agreement and
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court.
Section 11.10 Entire Agreement; Third Party Beneficiaries. This Agreement, including
the documents and information supplied in writing and instruments referred to herein, constitute
the entire agreement and supersedes all other prior agreements and understandings, both oral and
written, among the parties or between any of them, with respect to the subject matter hereof. This
Agreement shall be binding upon and inure solely to the benefit of the parties hereto, and nothing
in this Agreement, including the documents and information supplied in writing and instruments
referred to herein, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under
or by reason of this Agreement.
[SIGNATURE PAGES FOLLOW]
18
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly executed as of the
date first above written.
Western Refining, Inc. | |||||
By: | |||||
Name: | |||||
Title: | |||||
Western Refining Company, L.P. | |||||
By: Refinery Company, L.C., its general partner | |||||
By: | |||||
Name: | |||||
Title: | |||||
WRC Refining Company | |||||
By: | |||||
Name: | |||||
Title: | |||||
Western Refining GP, LLC | |||||
By: | |||||
Name: | |||||
Title: | |||||
Western Refining LP, LLC | |||||
By: | |||||
Name: | |||||
Title: | |||||
Refinery Company, L.C. | |||||
By: | |||||
Name: | |||||
Title: | |||||
RHC Holdings, L.P. |
19
By: WRC Refining Company, its general partner | ||||
By: | ||||
Name: | ||||
Title: | ||||
20
Exhibit A
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (“Agreement and Plan of Merger”), dated as of this
day of , 2005, by and between Refinery Company, L.C., a Texas limited liability
company (“RC”), on the one hand, and Western Refining GP, LLC, a Delaware limited liability
company (“WRGP”), on the other hand;
W I T N E S S E T H:
WHEREAS, WRC is a limited liability company organized and existing under and by virtue of the
laws of the State of Texas; and
WHEREAS, WRGP is a limited liability company organized and existing under and by virtue of the
laws of the State of Delaware; and
WHEREAS, the sole member of RC is WRC Refining Company, a Texas corporation (“WRCRC”);
and
WHEREAS, the sole member of WRGP is Western Refining, Inc., a Delaware corporation
(“WNR”); and
WHEREAS, the sole member of RC and the sole member of WRGP deem it desirable and in the best
interests of the respective entities and their members that RC be merged into and with WRGP, such
that WRGP shall be the surviving entity of the merger and consolidation, whose name upon giving
effect to such merger shall be “Western Refining GP, LLC” and which is hereinafter sometimes called
the “Surviving Company”, as authorized by the statutes of the State of Delaware and the State of
Texas and under and pursuant to the terms and conditions herein set forth, and each such member has
duly approved of and authorized the terms and conditions of this Agreement and Plan of Merger;
NOW, THEREFORE, in consideration of the mutual promises and covenants, and subject to the
terms and conditions herein set forth, the parties hereto hereby agree as follows:
1. The name and state of formation of each of the entities proposing to merge and consolidate
are:
Name | State of Formation | |
Refinery Company, L.C.
|
Texas | |
Western Refining GP, LLC
|
Delaware |
2. The parties hereto shall be merged into a single limited liability company by RC merging
into and with WRGP, the Surviving Company, which Surviving Company shall survive the merger
pursuant to, and shall be deemed to continue to exist under and be governed by, the provisions of
the Limited Liability Company Act of the State of Delaware, and whose name, upon and after the
effectiveness of the merger, shall be “WESTERN REFINING GP, LLC”. The address of the principal
place of business of the Surviving Company in its state of formation
A-1
shall continue to be the same address as prior to the effectiveness of the merger. Upon such
merger, the separate limited liability company existence of RC shall cease and terminate, and the
Surviving Company shall become the owner, without other transfer, of all of the rights, franchises
and properties, of every type and nature, of RC, and shall become subject to all of the debts and
liabilities of RC to the extent that such entity was subject to such debts and liabilities.
3. The Certificate of Formation and the Amended and Restated Limited Liability Company
Agreement of the Surviving Company shall, upon the merger becoming effective, be the Certificate of
Formation and the Amended and Restated Limited Liability Company Agreement of WRGP as in effect
immediately prior to the effective date of the merger and without any further changes therein until
the same shall be altered, amended or repealed or until new certificates of limited partnership and
limited liability company agreements are adopted as provided therein and by law.
4. The names and addresses of the officers of the Surviving Company are those names and
addresses of the officers, respectively, of WRGP immediately prior to the effective date of the
merger.
5. Membership interests of RC and WRGP shall be converted, exchanged or cancelled as follows:
(a) Outstanding Membership Interests of RC: The membership interests outstanding on
the effective date of the merger, which are held 100% by WRCRC shall be automatically
cancelled.
(b) Outstanding Membership Interests of WRGP: The membership interests of WRGP
outstanding immediately prior to the merger becoming effective shall be unchanged
immediately following the merger.
6. This Agreement and Plan of Merger shall be submitted to the respective members for their
approval in the manner provided by the applicable laws of the State of Delaware and the State of
Texas. After approval thereof by the members of such entities in the manner provided by the
applicable laws of the State of Delaware and the State of Texas, all required documents shall be
executed, filed and recorded and all required acts shall be done in order to accomplish the merger
under the provisions of the applicable laws of the State of Delaware and the State of Texas.
7. This Agreement and Plan of Merger may be terminated and abandoned by action of the
respective manager of RC and WRGP at any time prior to the filing and recording of all required
documents under the laws of the State of Delaware and the State of Texas, whether before or after
approval by the respective members of RC or WRGP.
[SIGNATURE PAGE FOLLOWS]
A-2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of Merger to be
duly executed by their respective officers effective on and as of the date above written.
Refinery Company, L.C. | |||||
By: | |||||
Name: | |||||
Title: | |||||
Western Refining GP, LLC | |||||
By: | |||||
Name: | |||||
Title: | |||||
A-3