Exhibit (d)(ii)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of _________,
2003, by and among Xxxxxx Limited Partnership, a Delaware limited
partnership ("Xxxxxx"), Castle Creek Partners, L.P., a Delaware limited
partnership ("Castle Creek"), BCLP GP, Inc., a Delaware corporation and
general partner of Xxxxxx ("BCLP GP"), and HenleyCo, Inc. ("HenleyCo"), a
Delaware corporation. Xxxxxx and HenleyCo are sometimes referred to herein
individually as a "Constituent Entity" and collectively as the "Constituent
Entities."
W I T N E S S E T H:
WHEREAS, the boards of directors of HenleyCo and BCLP GP, deem it
advisable, fair to and in the best interests of each of the Constituent
Entities and their equity holders that HenleyCo be merged with and into
Xxxxxx, with Xxxxxx surviving (hereinafter, in such capacity, sometimes
referred to as the "Surviving Entity"), as permitted by Section 263 of the
Delaware General Corporation Law ("DGCL") and Section 17-211 of the
Delaware Revised Uniform Limited Partnership Act ("DRUPLA") on the terms
and conditions set forth in this Agreement (the "Merger");
WHEREAS, each of the boards of directors of HenleyCo, BCLP GP and the
general partner of Castle Creek has approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the stockholders of HenleyCo have approved this Agreement
and the transactions contemplated hereby, and approval of the limited
partners of Xxxxxx is not required.
NOW THEREFORE, the parties hereto have agreed as follows:
ARTICLE I
PLAN OF MERGER
1.01. Plan Adopted. A plan of merger of each of the Constituent
Entities pursuant to the provisions of Section 263(c) of the DGCL and
Section 17-211(c) of the DRUPLA is adopted as follows:
(a) The Merger. At the Effective Time, as hereinafter
defined, HenleyCo shall be merged with and into Xxxxxx.
(b) Surviving Entity. The Surviving Entity in the Merger
shall be Xxxxxx and the name of Surviving Entity shall be Xxxxxx
Limited Partnership.
(c) Effects of the Merger. At the Effective Time, the
separate existence of HenleyCo shall cease, and Surviving Entity
shall succeed, without other transfer, to all the rights and property
of HenleyCo and shall be subject to all the debts and liabilities of
HenleyCo as provided in Section 263 of the DGCL and Section 17-211 of
the DRUPLA.
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(d) Conversion of HenleyCo Shares. At the Effective Time the
shares of common stock of HenleyCo that are issued and outstanding
immediately prior to the Effective Time (the "Shares") shall be
automatically converted by virtue of the Merger, and without any
action on the part of the holder thereof, as follows:
(i) the Shares held by Castle Creek (which represent
99% of the outstanding Shares) shall be converted into a
limited partnership interest of Xxxxxx that shall represent 99%
of the outstanding equity of Xxxxxx; and
(ii) the Shares held by BCLP GP (which represent 1% of
the outstanding Shares) shall be converted into a general
partnership interest of Xxxxxx that shall represent 1% of the
outstanding equity of Xxxxxx.
(e) Conversion of Xxxxxx Interests. At the Effective Time:
(i) Each unit representing limited partnership
interests of Xxxxxx (a "Unit") that is issued and outstanding
immediately prior to the Effective Time, other than Units held
by Castle Creek or Units held in Xxxxxx'x treasury (the "Public
Units") shall be automatically converted by virtue of the
Merger, and without any action on the part of the holder
thereof, into the nontransferable right to receive the Merger
Consideration as hereinafter defined.
(ii) Each Unit held by Castle Creek immediately prior to
the Effective Time shall be canceled in the Merger and shall
cease to exist as a result thereof and shall not be converted
into or entitled to receive the Merger Consideration or any
other consideration.
(iii) BCLP GP's general partnership interest in Xxxxxx
shall be canceled in the Merger and shall cease to exist as a
result thereof and shall not be converted into or entitled to
receive the Merger Consideration or any other consideration.
(iv) Each Unit held in the treasury of Xxxxxx Company
immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of Xxxxxx, be
canceled, retired and cease to exist and no payment shall be
made with respect thereto.
(f) Merger Consideration. The Merger Consideration in
respect of each former Public Unit shall consist of (A) an initial
payment of $27.00 in cash, without interest thereon (the "Initial
Merger Consideration"), plus (B) one or more possible additional cash
payments (the "Residual Consideration"), without interest thereon, of
the Proportionate Share (as hereinafter defined) of the Remaining
Residual Consideration Assets (as hereinafter defined), if any.
(i) Proportionate Share. The Proportionate Share in
respect of each former Public Unit shall be a fraction equal to
(A) 0.99 (reflecting the 99% aggregate pre-Merger equity
ownership of Unitholders in Xxxxxx) multiplied by (B) the
quotient obtained when 1.0 is divided by 2,703,664 (the total
number of Units outstanding at the time of the Merger).
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(ii) Remaining Residual Consideration Assets.
(A) The Remaining Residual Consideration Assets
shall consist of the Residual Consideration Assets (as
hereinafter defined), if any, that remain after payment
of, or provision for, taxes, expenses, liabilities,
claims and contingencies that relate to or arise out of
(x) Xxxxxx'x pre-Merger operations, (y) this Agreement and
the transactions contemplated by this Agreement, including
the Merger, or (z) the Residual Consideration Assets.
(B) The Residual Consideration Assets shall
consist of all of the assets of Xxxxxx after the Merger
(and earnings thereon) except for (I) an amount equal to
the aggregate Initial Merger Consideration, which shall
be paid to holders of Public Units in exchange for
Certificates (as hereinafter defined) as set forth this
Agreement, (II) an amount equal to $27.00 for each Unit
held by Castle Creek immediately before the Merger (or
approximately $18,292,500) and earnings thereon, and
(III) an amount representing BCLP GP's one percent
general partnership interest in Xxxxxx with respect to
the Initial Merger Consideration (or approximately
$737,362) or earnings thereon.
(iii) Rounding. Residual Consideration calculations
shall be rounded to the nearest cent.
(iv) Example of Residual Consideration Calculation. By
way of example, if the Remaining Residual Consideration Assets
total $1.0 million, the Residual Consideration in respect of
each former Public Unit will be approximately $0.36616976,
calculated as follows:
0.99 multiplied by (1.0 divided by 2,703,664) multiplied by $1,000,000
which equals
approximately $0.36616976 per Public Unit formerly held
Accordingly, as illustrative examples assuming Remaining
Residual Consideration Assets of $1.0 million, a former holder
of 1,000 Public Units would receive $366.17 in Residual
Consideration, and a former holder of 1 Public Unit would
receive $0.37 in Residual Consideration. The actual amount of
Remaining Residual Consideration Assets may not be $1.0
million.
(v) Payment of Residual Consideration. The timing of
the payment of the Residual Consideration, if any, shall be in
the discretion of BCLP GP.
(g) No Appraisal Rights. Unitholders shall not be entitled
to appraisal rights.
(h) Withholding Tax. The right of any former holder of a
Public Unit to receive Merger Consideration shall be subject to and
reduced by the amount of any required tax withholding obligation.
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1.02. Exchange of Certificates.
(a) Paying Agent. Before the Effective Time, Xxxxxx shall
designate a paying agent in the Merger (the "Paying Agent"). Xxxxxx
shall deposit with the Paying Agent in separate trust for holders of
the Certificates (as hereinafter defined) immediately available funds
in an amount sufficient for the payment of the aggregate Initial
Merger Consideration upon surrender of Certificates representing
Public Units converted pursuant to Section 1.01(e) hereof (it being
understood that any and all interest earned on funds made available
to the Paying Agent pursuant to this Agreement shall be turned over
to Surviving Entity).
(b) Exchange Procedure.
(i) After the Effective Time, Surviving Entity shall
cause to be mailed to each holder of record of a certificate or
certificates that immediately prior to the Effective Time
represented Public Units (the "Certificates"), (i) a letter of
transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Paying
Agent and shall be in a form and have other such provisions as
Surviving Entity may reasonably specify) and (ii) instructions
for use in effecting the surrender of the Certificates in
exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Paying Agent or to such
other agent or agents as may be appointed by Surviving Entity,
together with such letter of transmittal, duly executed, and
such other documents as may reasonably be required by the
Paying Agent, the holder of such Certificate shall be entitled
to receive in exchange therefor, and the Paying Agent shall pay
pursuant to instructions given by Surviving Entity, the Initial
Merger Consideration for each Public Unit formerly evidenced by
such Certificate, and such Certificate shall thereupon be
canceled. If payment of the Merger Consideration is to be made
to a person other than the person in whose name the surrendered
Certificate is registered on the transfer books of Xxxxxx, it
shall be a condition of payment to the holder of a Certificate
that the Certificate be endorsed properly or otherwise be in
proper form for transfer and that the person requesting such
payment shall have paid all transfer and other taxes required
by reason of the payment of the Merger Consideration to a
person other than the registered holder or shall have
established to the satisfaction of Surviving Entity that such
taxes are not applicable. Until surrendered as contemplated by
this Section 1.02(b), each Certificate shall be deemed at any
time after the Effective Time to represent only the
nontransferable right to receive upon such surrender the Merger
Consideration into which the Public Units theretofore
represented by such Certificate shall have been converted
pursuant to Section 1.01(e) hereof. No interest will be paid
or will accrue on the cash payable upon the surrender of any
Certificate.
(ii) Upon the determination of BCLP GP that Residual
Consideration is to be paid to former holders of Public Units,
Surviving Entity shall make arrangements consistent with those
made with respect to payment of the Initial Merger
Consideration for payment of Residual Merger Consideration to
holders whose Certificates formerly evidencing Public Units
previously were surrendered pursuant to Section 1.20(b) (it
being understood that any and all interest earned on Residual
Consideration funds after such arrangements are made shall be
turned over to Surviving Entity).
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(d) Unit Transfer Books. At the close of business on the day
of the Effective Time, the transfer books of Xxxxxx shall be closed
and, thereafter, there shall be no further registration of transfers
of Units. If, after the Effective Time, Certificates are presented
to Surviving Entity or the Paying Agent for any reason, they shall be
canceled and exchanged as provided in this Article I. All cash paid
upon the surrender of Certificates in accordance with terms of this
Article I shall be deemed to have been paid in full satisfaction of
all rights pertaining to the Units theretofore represented by such
Certificates.
(e) No Further Ownership Rights in Xxxxxx. At the Effective
Time, each Public Unit shall be converted into the right to receive
Merger Consideration as provided in Section 1.01(e). Each holder of
Public Units shall, at the Effective Time, cease to have any rights
with respect to such Public Units, except the right to receive Merger
Consideration. Merger Consideration paid pursuant to Section 1.01(f)
shall be deemed to have been issued in full satisfaction of all
rights pertaining to the Units converted in the Merger in accordance
with Section 1.01(e).
(f) Return of Merger Consideration Funds. Any funds made
available to the Paying Agent for payment as Merger Consideration
that remain undistributed on the one-year anniversary of the
Effective Time shall be delivered to Xxxxxx, upon demand, and any
former holder of Public Units shall thereafter look only to Xxxxxx
for payment of their Merger Consideration.
(g) No Liability. Neither Xxxxxx nor HenleyCo shall be
liable to any person in respect of any cash delivered to a public
official pursuant to any applicable abandoned property, escheat or
similar law.
1.03. Effective Time. The effective time and date of the Merger,
herein referred to as the "Effective Time," shall be the time at which an
appropriate Certificate of Merger relating to the Merger is filed in the
office of the Secretary of State of the State of Delaware in accordance
with the provisions of Section 263 of the DGCL and Section 17-211 of the
DRUPLA, or such later time as is agreed to by Xxxxxx and HenleyCo and
stated in such Certificate of Merger (substantially in the form attached
hereto as Exhibit A).
ARTICLE II
LIMITED PARTNERSHIP AGREEMENT
2.01. Surviving Entity Limited Partnership Agreement. The limited
partnership agreement of Xxxxxx shall be the limited partnership agreement
of Surviving Entity at the Effective Time.
ARTICLE III
GENERAL PARTNER AND OFFICERS
3.01. General Partner. BCLP GP shall be the general partner of
Surviving Entity.
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3.02. Officers. The officers of Surviving Entity shall be the
officers of Xxxxxx immediately prior to the Effective Time of the Merger.
ARTICLE IV
CONDITIONS TO THE MERGER
4.01. Conditions to the Merger. The obligations of the Constituent
Entities to consummate the Merger are subject to satisfaction of the
following conditions:
(a) no court or governmental entity of competent jurisdiction
shall have enacted, issued, promulgated or entered any law, order,
injunction or decree that is in effect and restrains, enjoins or
otherwise prohibits consummation of the Merger; and
(b) other than filing a Certificate of Merger with the
Secretary of State of the State of Delaware, all required
authorizations, consents or approvals of governmental entities shall
have been obtained or made free of any material condition.
ARTICLE V
AMENDMENT AND TERMINATION
5.01. Amendment. To the fullest extent permitted by Delaware law,
this Agreement may be amended by mutual consent of the parties hereto at
any time prior to the Effective Time, notwithstanding any approval of this
Agreement by the Unitholders or stockholders of either of the Constituent
Entities.
5.02. Termination. To the fullest extent permitted by Delaware law,
this Agreement may be terminated, and the Merger herein provided for may be
abandoned, by mutual consent of the parties hereto at any time prior to the
Effective Time, notwithstanding any approval of this Agreement by the
Unitholders or stockholders of the Constituent Entities. Each of the
parties hereto specifically reserves the right to terminate this Agreement
and abandon the Merger at any time prior to the Effective Time.
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IN WITNESS WHEREOF, this Agreement, having first been duly approved
by the boards of directors of HenleyCo, BCLP GP, in its capacity as
stockholder of HenleyCo and as general partner of Xxxxxx, and the general
partner of Castle Creek, is hereby executed on behalf of each the parties
hereto by a duly authorized officer thereof, this _______ day of
______________, 2003.
XXXXXX LIMITED PARTNERSHIP
By: BCLP GP, Inc., its general partner
By: ______________________
Name: ______________________
Office: ______________________
HENLEYCO, INC.
By: ______________________
Name: ______________________
Office: ______________________
CASTLE CREEK PARTNERS, L.P.
By: Castle Creek Partners GP, Inc.,
its general partner
By: ______________________
Name: ______________________
Office: ______________________
BCLP GP, INC.
By: ______________________
Name: ______________________
Office: ______________________
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CERTIFICATE OF MERGER OF
HENLEYCO, INC.
(a Delaware corporation)
WITH AND INTO
XXXXXX LIMITED PARTNERSHIP
(a Delaware limited partnership)
(Pursuant to Section 263 of the Delaware General Corporation Law
and Section 17-211 of the Delaware Revised Uniform Limited
Partnership Act)
The undersigned hereby certifies that:
FIRST: The name and state of domicile of each of the constituent
entities participating in the merger herein certified are as follows:
Name State of Domicile
---- -----------------
Xxxxxx Limited Partnership Delaware
HenleyCo, Inc. Delaware
SECOND: An Agreement and Plan of Merger (the "Merger Agreement") has
been approved, adopted, certified, executed and acknowledged by the
constituent entities in accordance with Section 263(c) of the Delaware
General Corporation Law and Section 17-211(b) of the Delaware Revised
Uniform Limited Partnership Act.
THIRD: The name of the surviving limited partnership is Xxxxxx
Limited Partnership.
FOURTH: The merger is to become effective at ______ on ______ __,
2003.
FIFTH: The Merger Agreement is on file at 000 Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000, a place of business of the surviving limited
partnership.
SIXTH: A copy of the Merger Agreement will be furnished by the
surviving limited partnership on request, without cost, to any partner of
the constituent limited partnership or any stockholder of the constituent
corporation.
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IN WITNESS WHEREOF, Xxxxxx Limited Partnership has caused this certificate
of merger, pursuant to Section 263 of the Delaware General Corporation Law
and Section 17-211 of the Delaware Revised Uniform Limited Partnership Act,
to be signed by its general partner as of __________ __, 2003.
XXXXXX LIMITED PARTNERSHIP
By: BCLP GP, Inc., its general partner
By: ______________________
Name: ______________________
Office: ______________________
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