AGREEMENT AND PLAN OF MERGER
EXHIBIT 2.4
THIS AGREEMENT AND PLAN OF MERGER, dated as of November 30, 2007, by and between Xxxxxxx
Development GP, LLC, a Delaware limited liability company (“GP LLC”), Xxxxxxx Development I, LP, a
Delaware limited partnership (“Development”), and Xxxxxxx Producing, LLC, a Delaware limited
liability company (“Producing”). GP LLC, Development and Producing are hereinafter collectively
referred to as the “Merging Entities.”
W I T N E S S E T H:
Whereas, GP LLC is a limited liability company duly organized and validly existing
under the laws of the State of Delaware, with its registered office at 0000 Xxxxxx Xxxxxx, Xxxx of
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, and with its principal executive offices at 0000
XxXxxxxx, Xxxxx 000, Xxxxxxx, XX 00000;
Whereas, Development is a limited partnership duly organized and validly existing
under the laws of the State of Delaware, with its registered office at 0000 Xxxxxx Xxxxxx, Xxxx of
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, and with its principal executive offices at 0000
XxXxxxxx, Xxxxx 000, Xxxxxxx, XX 00000;
Whereas, Producing is a limited liability company duly organized and validly existing
under the laws of the State of Delaware, with its registered office at 000 Xxxxx Xxxxxx Xxxxxxx,
Xxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and with its principal executive offices at 0000 XxXxxxxx,
Xxxxx 000, Xxxxxxx, XX 00000; and
Whereas, the respective members and partners of GP LLC, Development and Producing
deem it desirable and in the best interests of GP LLC, Development and Producing, as applicable, to
merge GP LLC and Development into Producing, pursuant to the provisions of Section 18-209 of the
Delaware Limited Liability Company Act, and have proposed, declared advisable, and approved such
merger pursuant to this Agreement and Plan of Merger (the “Agreement”), which Agreement has been
duly approved by resolutions of the respective members and partners of GP LLC, Development and
Producing.
Now, Therefore, in consideration of the premises and of the mutual covenants and
agreements herein contained, and in order to prescribe the terms and conditions of the merger, the
mode of carrying the same into effect, the manner and basis of converting the membership interests
of GP LLC and partnership interests of Development into membership interests of Producing, and such
other details and provisions as are deemed necessary or proper, the parties hereby agree as
follows:
ARTICLE I.
Merger
1.1 Surviving Entity. Subject to the conditions hereinafter set forth, the Merging Entities
shall be, upon the effective date of the merger as defined in Section 1.2 hereof, merged into a
single surviving entity, which shall be Producing and which shall continue its corporate
existence and remain a Delaware limited liability company, governed by and subject to the laws
of that State.
1.2 Effective Time. The merger shall become effective at the date and time designated in the
Articles of Merger filed with the Secretary of State of Delaware following its adoption, execution
in accordance with Section 18-209 of the Delaware Limited Liability Company Act. The date upon
which the merger shall become effective, as defined by this Section 1.2, is referred to in this
Agreement as the “Effective Time.”
ARTICLE II.
Continued Existence of Surviving Entity
2.1 Existence. The identity, existence, purposes, powers, objects, franchises, rights, and
immunities of Producing, as the Surviving Entity, shall continue unaffected and unimpaired by the
merger, and the corporate identity, existence, purposes, powers, objects, franchises, rights, and
immunities of the Merging Entities shall be wholly merged into Producing, the Surviving Entity, and
Producing shall be fully vested therewith. Accordingly, at the Effective Time, the separate
existence of the Merging Entities, except insofar as continued by statute, shall cease.
ARTICLE III.
Governing Law and Certificate of Formation of Surviving Entity
3.1 Delaware Law Governs and Producing’s Certificate of Formation Survives. The laws of
Delaware shall continue to govern the Surviving Entity. At and after the Effective Time, the
Certificate of Formation of Producing, as in effect at the Effective Time, shall be the Certificate
of Formation of the Surviving Entity until thereafter amended in the manner provided by law.
ARTICLE IV.
Limited Liability Company Agreement of Surviving Entity
4.1 Producing’s Limited Liability Company Agreement Survives. At and after the Effective
Time, the Limited Liability Company Agreement of Producing shall be the Limited Liability Company
Agreement of the Surviving Entity until the same shall be altered, amended, or repealed, or until a
new Limited Liability Company Agreement shall be adopted in accordance with the provisions of law,
the Certificate of Formation and the Limited Liability Company Agreement of the Surviving Entity.
ARTICLE V.
Membership Interests of Surviving Entity
5.1 Membership Interests as in Producing’s Limited Liability Company Agreement. The rights
and limitations of the membership interests of the Surviving Entity, and the express
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terms thereof, shall be as set forth in the Limited Liability Company Agreement of the
Surviving Entity as adopted pursuant to Section 4.1 hereof.
ARTICLE VI.
Conversion of Partnership and Membership Interests on Merger
6.1 General. The manner and basis of converting the outstanding membership interests of the
members of GP LLC and partnership interests of Development into the membership interests of
Producing shall be as hereinafter set forth in this Article VI.
6.2 Conversion of GP LLC’s Membership Interests. At the Effective Time, the membership
interests of GP LLC then issued and outstanding, without any action on the part of the holders
thereof, shall automatically become and be converted into membership interests of the Surviving
Entity.
6.3 Conversion of Development’s Partnership Interests. At the Effective Time, the partnership
interests of Development then issued and outstanding, without any action on the part of the holders
thereof, shall automatically become and be converted into membership interests of the Surviving
Entity.
6.4 Transfer Books Closed. At the Effective Time, the transfer books of GP LLC and
Development shall be deemed closed, and no transfer of membership interests of GP LLC or
partnership interests of Development shall thereafter be made or consummated.
ARTICLE VII.
Assets and Liabilities
7.1 Assets and Liabilities of Merging Entities Become Those of Surviving Entity. At the
Effective Time, all rights, privileges, powers, immunities, and franchises of each of the Merging
Entities, both of a public and private nature, and all property, real, personal, and mixed, and all
debts due on whatever account, as well as stock subscriptions and all other chooses or things in
action, and all and every other interest of or belonging to or due to either of the Merging
Entities, shall be taken by and deemed to be transferred to and shall be vested in the Surviving
Entity without further act or deed, and all such rights, privileges, powers, immunities,
franchises, property, debts, chooses or things in action, and all and every other interest of the
Merging Entities shall be thereafter as effectually the property of the Surviving Entity as they
were of the respective Merging Entities, and the title to any real or other property, or any
interest therein, whether vested by deed or otherwise, in either of the Merging Entities, shall not
revert or be in any way impaired by reason of the merger; provided, however, that all rights of
creditors and all liens upon any properties of each of the Merging Entities shall be preserved
unimpaired, and all debts, liabilities, restrictions obligations, and duties of the respective
Merging Entities, including without limitation all obligations, liabilities, and duties as lessee
under any existing lease, shall thenceforth attach to the Surviving Entity and may be enforced
against and by it to the same extent as if said debts, liabilities, restrictions, obligations, and
duties had been incurred or contracted by it. Any action or proceeding pending by or against
either of the Merging
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Entities may be prosecuted to judgment as if the merger had not taken place, or the Surviving
Entity may be substituted in place of either of the Merging Entities.
7.2 Accounting Treatment. The assets and liabilities of the Merging Entities shall be taken
up on the books of the Surviving Entity in accordance with generally accepted accounting
principles, and the members’ capital accounts of the Surviving Entity shall be determined, in
accordance with generally accepted accounting principles, pursuant to the Limited Liability Company
Agreement of the Surviving Entity. Nothing herein shall prevent any future changes from being made
in its accounts in accordance with applicable law.
7.3 Termination. This Agreement may be terminated at any time prior to the Effective Time, by
consent of GP LLC or Development, expressed by action of its sole member.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed in
their respective names by their respective duly authorized officers, all as of the day and year
first above written.
| Xxxxxxx Development GP, LLC, a Delaware limited liability company By: Xxxxxxx Mezz, LLC, its sole member By: Xxxxxxx Holdings, its sole member |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Executive Vice President, Chief Financial Officer and Secretary |
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| Xxxxxxx Development I, LP a Delaware limited partnership By: Xxxxxxx Development GP, LLC, its general partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Executive Vice President, Chief Financial Officer and Secretary |
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| Xxxxxxx Producing, LLC a Delaware limited liability company By: Xxxxxxx Mezz, its sole member By: Xxxxxxx Holdings, its sole member |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Executive Vice President, Chief Financial Officer and Secretary |
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