Exhibit 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
December 26, 2001, and effective as of the Effective Time (as defined below) by
and between Xxxxxxx Stock LLC ("Assignor"), a Delaware limited liability
company, The Xxxxxxx Master Limited Partnership ("Assignee"), a Delaware limited
partnership, Xxxxxxx XX Holdings LLC ("Xxxxxxx XX"), a Delaware limited
liability company, and VNK Corp. ("VNK"), a Delaware corporation.
RECITALS
WHEREAS, Assignor is the sole member of Xxxxxxx XX LLC ("Xxxxxxx XX") and
owns a limited liability company interest in Xxxxxxx Capital LLC representing
50.01% of the limited liability company interests of Xxxxxxx Capital LLC
("Xxxxxxx Capital" and, together with Xxxxxxx XX, the "Companies"), each of
which is a Delaware limited liability company; and
WHEREAS, Assignor desires to transfer and assign Assignor's limited
liability company interests in each of Xxxxxxx XX (the "Xxxxxxx XX Interest")
and Xxxxxxx Capital (the "Xxxxxxx Capital Interest" and, collectively with the
Xxxxxxx XX Interest, the "Interests") to Assignee and Assignee desires to accept
such assignment and assume the obligations of Assignor with respect to the
Interests, in each case, effective concurrently with the effective time (the
"Effective Time") of the "Mergers" described in the Agreement and Plan of
Merger, dated as of December 6, 2001, among Assignee, the Merger Partnerships
and the Merger Subs (as each such term is defined therein); and
WHEREAS, in consideration of the assignment and transfer of the Interests,
Assignee will issue units of limited partner interest in Assignee ("MLP Units")
to Xxxxxxx XX and VNK, beneficial owners of Assignor, as directed by Assignor.
NOW THEREFORE, INTENDING TO BE LEGALLY BOUND and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
subject to the terms and conditions set forth below, the parties agree as
follows:
AGREEMENT
1. Assignment of Interests. Assignor hereby sells, assigns and transfers
to Assignee all of Assignor's right, title, and interest in and to the
Interests, as well as all of Assignor's rights under the respective limited
liability company agreements of the Companies, as amended from time to time (the
"LLC Agreements"), such sale, assignment and transfer to be effective as of the
Effective Time, notwithstanding any provision of the LLC Agreements.
2. Assumption of Interests. Notwithstanding any provision of the LLC
Agreements, effective as of the Effective Time, Assignee hereby (i) accepts the
foregoing sale and assignment, and (ii) agrees that it is bound by, and assumes
all of Assignor's obligations to be performed after the Effective Time with
respect to the Interests under, the respective LLC Agreements.
3. Consideration.
Xxxxxxx XX Interest. In consideration of the sale, assignment and transfer
of the Xxxxxxx XX Interest, Assignee shall, at the Effective Time, issue an
aggregate of 526 MLP Xxxxx, 000 of which MLP Units shall be issued to Xxxxxxx XX
and 158 of which MLP Units shall be issued to VNK.
Xxxxxxx Capital Interest. In consideration of the sale, assignment and
transfer of the Xxxxxxx Capital Interest, Assignee shall, at the Effective Time,
issue an aggregate of 319,318 MLP Units, 271,308 of which MLP Units shall be
issued to Xxxxxxx XX and 48,010 of which MLP Units shall be issued to VNK.
4. Partnership Agreement. By executing this Agreement, Xxxxxxx XX and VNK
shall each be deemed to have executed, as of the Effective Time, a counterpart
to the Agreement of Limited Partnership, dated as of October 23, 2001, of
Assignee (the "MLP Agreement") and to have agreed to be bound by all the terms
and conditions of the MLP Agreement from and after the Effective Time, as such
terms and conditions relate to MLP Units and holders thereof.
5. Admission; Resignation; Continuation. Notwithstanding any provision of
the LLC Agreements, the parties hereto agree that, effective as of the Effective
Time, (i) Assignee is admitted to each of the Companies as a substitute member
of each Company, (ii) Assignor ceases to be a member of, and ceases to have or
exercise any right or power as a member of, each of the Companies, (iii)
Assignee is continuing each of the Companies without dissolution, and (iv) each
of the LLC Agreements is hereby amended to reflect the foregoing, and all
references in each LLC Agreement to Assignor are hereby amended to refer to
Assignee, or as applicable, Assignor hereby consents to such amendments.
6. Further Cooperation. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases, assumptions
and amendments in respect of this Agreement and other documents as may be
reasonably requested for the purpose of giving effect to, or evidencing or
giving notice of, the transactions contemplated by this Agreement.
7. Amendment. This Agreement may be amended only by a written instrument
that shall have been signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without regard to the conflicts of law principles of such
State.
9. Binding. This Agreement shall become binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
10. Counterparts. This Agreement may be executed in any number of
facsimile counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXXX STOCK LLC
By: Xxxxxxx Manager Corp., its Manager
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Executive Vice President
THE XXXXXXX MASTER LIMITED PARTNERSHIP
By: MLP GP LLC, its general partner
By: Xxxxxxx MLP Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXXXX XX HOLDINGS LLC
By: Xxxxxxx Manager (NV) Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
VNK CORP.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President - Finance
and Administration, Chief Financial
Officer
ACKNOWLEDGED AND AGREED:
XXXXXXX MANAGER CORP.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
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