Exhibit 2.7
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is entered into as of
this 6th day of December 2001, by and between The Xxxxxxx Master Limited
Partnership, a Delaware limited partnership ("MLP"), Lanmar Associates Limited
Partnership, a Pennsylvania limited partnership ("Lanmar") and Xxxxxxx Lanmar
L.P., a Delaware limited partnership (the "Merger Sub").
RECITALS:
WHEREAS, the parties desire to effect the merger of Lanmar, with and into
the Merger Sub (the "Merger") in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the receipt and sufficiency of which are
acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
"Accredited Partner" means a limited partner in Lanmar who MLP reasonably
believes is an "accredited investor" as defined in Regulation D under the
Securities Act of 1933, as amended.
"Agreement" means this Agreement, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended.
"Delaware RULPA" means the Delaware Revised Uniform Limited Partnership Act, 6
Del. Ct. (ss. 17-101, et. seq.)
"Distribution Percentage" of an LP Interest or GP Interest shall have the
meaning ascribed to such term in the partnership agreement of Lanmar.
"Effective Time" has the meaning set forth in Section 2.4 below.
"GP Interest" shall mean a general partner interest in Lanmar.
"Limited Partner" means a limited partner of Lanmar.
"Liquidation Allocation" of an LP Interest or GP Interest shall mean the product
of (a) the Distribution Percentage represented by such LP Interest or GP
Interest and (b) $7,236,990.
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"LP Interest" shall mean a limited partner interest in Lanmar.
"Merger" has the meaning set forth in the first paragraph of the Recitals above.
"MLP" has the meaning set forth in the preface above.
"MLP Units" shall mean the units of limited partner interest of MLP.
"Non-Accredited Partner" means a Limited Partner who is not an Accredited
Partner.
"Parties" means the parties to this Agreement.
"Pennsylvania Act" means the Pennsylvania Revised Uniform Limited Partnership
Act.
"Person" means an individual, a partnership, a corporation, an association, a
joint stock company, a trust, a joint venture, a limited liability company, an
unincorporated organization, a governmental entity (or any department, agency,
or political subdivision thereof) or other entity.
"Surviving Partnership" has the meaning set forth in Section 2.1 below.
ARTICLE II
MERGER; EFFECTIVE TIME; CLOSING
Section 2.1 Merger of Lanmar into Merger Sub.
At the Effective Time, Lanmar shall merge with and into the Merger Sub, and the
separate existence of Lanmar shall cease. The Merger Sub shall be the surviving
entity in the Merger (the "Surviving Partnership") and the existence of the
Merger Sub, with all its rights, privileges, powers and franchises, and the
partnership interests in the Merger Sub, shall continue unaffected and
unimpaired by the Merger.
Section 2.2 Effect of the Mergers.
The Merger shall have the effects provided for in the Pennsylvania Act and the
Delaware RULPA.
Section 2.3 Governing Instrument.
The limited partnership agreement and certificate of limited partnership of the
Merger Sub as in effect immediately prior to the effective time shall be the
limited partnership agreement and certificate of limited partnership, as the
case may be, of the Surviving Partnership immediately following the Merger.
Section 2.4 Certificates of Merger; Effective Time.
Promptly after the date hereof, a certificate of merger evidencing the Merger
shall be filed with the Secretary of State of the State of Delaware and with the
Secretary of the Commonwealth of the Commonwealth of Pennsylvania (each, a
"Certificate of Merger"). The Certificates of Merger shall each provide that the
Merger shall become effective at 12:01 a.m., Eastern Standard Time, on January
1, 2002 (the "Effective Time").
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ARTICLE III
CONVERSION OF PARTNERSHIP INTERESTS
Section 3.1 Conversion of Partnership Interests Held By Accredited Partners.
At the Effective Time:
(a) The LP Interest of each Accredited Partner in Lanmar shall, by
virtue of the Merger and without any action by the holder thereof,
be converted into the number of MLP Units determined by dividing the
Liquidation Allocation of such LP Interest by 100.
(b) Each GP Interest shall, by virtue of the Merger and without any
action by the general partner of Lanmar, be converted into the
number of MLP Units determined by dividing the Liquidation
Allocation of such GP Interest by 100.
Section 3.2 Conversion of LP Interest Held By Non-Accredited Partners.
At the Effective Time, the LP Interest of each Non-Accredited Partner shall be
purchased by MLP for cash equal to 65% of the Liquidation Allocation of such LP
Interest, and the LP Interest of each Non-Accredited Partner shall, by virtue of
the Merger and without any action by the holder thereof, be converted into the
right to receive said cash amount. If there are one or more Non-Accredited
Partners in Lanmar, the transaction shall be treated by Lanmar and by MLP,
respectively, as a sale of the LP Interest of each Non-Accredited Partner to MLP
for said cash amount.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination and Amendment.
At any time prior to the Effective Time, this Agreement and the Merger may be
terminated by the mutual agreement of the parties hereto. This Agreement shall
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
Section 4.2 Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement.
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Section 4.3 General Partner Actions.
The general partner of the Surviving Partnership shall be authorized, at such
time as it deems appropriate in its full discretion, to execute, acknowledge,
verify, deliver, file and record, for and in the name of the Surviving
Partnership, and for and on behalf of Lanmar, any and all documents and
instruments, and shall do and perform any and all acts required by applicable
law or which such general partner deems necessary or advisable in order to
effectuate the Merger.
Section 4.4 Choice of Law.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Delaware applicable to contracts made and to be performed wholly
within said State without giving effect to conflicts of laws principles thereof.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by an officer duly authorized to do so, all as of the day and year
first above written.
THE XXXXXXX MASTER
LIMITED PARTNERSHIP
By: MLP GP LLC, its general partner
By: Xxxxxxx MLP Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXXXX LANMAR L.P.
By: Xxxxxxx Lanmar GP LLC, its general partner
By: MLP Manager Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
LANMAR ASSOCIATES LIMITED PARTNERSHIP
By: Xxxxxx Associates,
General Partner
By: Xxxxxx I Limited Partnership,
General Partner
By: Xxxxxx Corp.,
General Partner
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
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