AGREEMENT AND PLAN OF MERGER OF ENDURO ROYALTY TRUST AND ENDURO TEXAS LLC
Exhibit 1.2
AGREEMENT AND PLAN OF MERGER
OF
AND
ENDURO TEXAS LLC
This Agreement and Plan of Merger (this “Plan of Merger”) is made as of the 3rd day of
November, 2011, between Enduro Royalty Trust, a Delaware statutory trust (the “Trust”), and
Enduro Texas LLC, a Texas limited liability company (the “Texas LLC”).
W I T N E S S E T H
WHEREAS, the Trust desires to acquire the properties and other assets, and to assume all of
the liabilities and obligations, of the Texas LLC by means of a merger of the Texas LLC with and
into the Trust;
WHEREAS, Section 3815 of the Delaware Statutory Trust Act (the “Delaware Act”) and
Chapter 10 of the Texas Business Organizations Code (the “TBOC”) authorize the merger of a
Texas limited liability company with and into a Delaware statutory trust;
WHEREAS, the Trust and the Texas LLC now desire to merge (the “Merger”), following
which the Trust shall be the surviving entity;
WHEREAS, the Merger, this Plan of Merger and the consummation of the Merger have been approved
in accordance with the Delaware Act, the TBOC and the terms of the governing documents of the Trust
and Texas LLC; and
WHEREAS, the sole member of the Texas LLC has approved this Plan of Merger and the
consummation of the Merger.
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
THE MERGER
SECTION 1.01. The Merger.
(a) After satisfaction or, to the extent permitted hereunder, waiver of all conditions to the
Merger, as the Trust shall determine, the Trust, which shall be the
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surviving entity, shall file a certificate of merger (the “Delaware Certificate of
Merger”) with the Secretary of State of the State of Delaware and make all other filings or
recordings required by Delaware law in connection with the Merger. The Trust and the Texas LLC
shall file a certificate of merger (the “Texas Certificate of Merger”) with the Secretary
of State of the State of Texas and make all other filings or recordings required by Texas law in
connection with the Merger. The Merger shall become effective at such time as is specified in the
Delaware Certificate of Merger and the Texas Certificate of Merger (the “Effective Time”).
(b) At the Effective Time, the Texas LLC shall be merged with and into the Trust, whereupon
the separate existence of the Texas LLC shall cease, and the Trust shall be the surviving entity of
the Merger (the “Surviving Entity”) in accordance with Section 3815 of the Delaware Act and
Section 10.008 of the TBOC.
SECTION 1.02. Interests. At the Effective Time, the limited liability company
interest in the Texas LLC outstanding immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be converted into the right to
receive 33,000,000 trust units of the Trust and shall cease to be outstanding and shall be
canceled. Contractual appraisal rights shall not be available as a result of the Merger.
ARTICLE II
THE SURVIVING ENTITY
THE SURVIVING ENTITY
SECTION 2.01. Certificate of Trust and Trust Agreement. The Certificate of Trust and
the Trust Agreement of the Trust, as in effect at the Effective Time, shall be the certificate of
trust and trust agreement of the Surviving Entity unless and until amended in accordance with their
terms and applicable law. The name of the Surviving Entity shall be Enduro Royalty Trust.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. Transfer, Conveyance and Assumption. At the Effective Time, the Trust
shall continue in existence as the Surviving Entity, and without further transfer, succeed to and
possess all of the rights, privileges and powers of the Texas LLC, and all of the assets and
property of whatever kind and character of the Texas LLC shall vest in the Trust without further
act or deed; thereafter, the Trust, as the Surviving Entity, shall be liable for all of the
liabilities and obligations of the Texas LLC, and any claim or judgment against the Texas LLC may
be enforced against the Trust, as the Surviving Entity, in accordance with Section 3815 of the
Delaware Act and Section 10.008 of the TBOC.
SECTION 3.02. Further Assurances. If at any time the Trust shall consider or be
advised that any further assignment, conveyance or assurance is necessary or advisable to vest,
perfect or confirm of record in the Surviving Entity the title to any property or right
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of the Texas LLC, or otherwise to carry out the provisions hereof, the proper representatives
of the Texas LLC immediately before the Effective Time shall execute and deliver any and all proper
deeds, assignments, and assurances and do all things necessary or proper to vest, perfect or convey
title to such property or right in the Surviving Entity, and otherwise to carry out the provisions
hereof.
ARTICLE IV
TERMINATION
TERMINATION
SECTION 4.01. Termination. This Plan of Merger may be terminated and the Merger may
be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of the Trust and the Texas LLC;
(b) by either the Trust, or the Texas LLC, if there shall be any law or regulation that makes
consummation of the Merger illegal or otherwise prohibited, or if any judgment, injunction, order
or decree enjoining the Trust or the Texas LLC from consummating the Merger is entered and such
judgment, injunction, order or decree shall become final and nonappealable.
SECTION 4.02. Effect of Termination. If this Plan of Merger is terminated pursuant
to Section 4.01, this Plan of Merger shall become void and of no effect with no liability on the
part of either party hereto.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
SECTION 5.01. Amendments; No Waivers. Any provision of this Plan of Merger may,
subject to applicable law, be amended or waived prior to the Effective Time if, and only if, such
amendment or waiver is in writing and signed by the Trust and the Texas LLC. No failure or delay
by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 5.02. Integration. All prior or contemporaneous agreements, contracts,
promises, representations, and statements, if any, between the Trust and the Texas LLC, or their
representatives, are merged into this Plan of Merger, and this Plan of Merger shall constitute the
entire understanding between the Trust and the Texas LLC with respect to the subject matter hereof.
SECTION 5.03. Successors and Assigns. The provisions of this Plan of Merger shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns; provided that no party may assign, delegate or otherwise transfer
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any of its rights or obligations under this Plan of Merger without the consent of the other
party hereto.
SECTION 5.04. Governing Law. This Plan of Merger shall be construed in accordance
with and governed by the laws of the State of Delaware, without giving effect to principles of
conflicts of law.
SECTION 5.05. Counterparts; Effectiveness. This Plan of Merger may be signed in any
number of counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Plan of Merger shall become
effective when each party hereto shall have received the counterpart hereof signed by the other
party hereto.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Plan of Merger to be duly executed as
of the day and year first above written.
| ENDURO ROYALTY TRUST |
||||
| By: | The Bank of New York Mellon Trust Company, N.A., not individually but solely as trustee | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| ENDURO TEXAS LLC |
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| By: | Enduro Resource Partners LLC, its sole member | |||
| By: | /s/ Xxx X. Xxxxxxx | |||
| Name: | Xxx X. Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
Signature Page to Agreement and Plan of Merger
