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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
DATED AS OF MARCH 9, 1999
BETWEEN
SUN ENERGY PARTNERS, L.P.
AND
XXXX-XxXXX ENERGY CORPORATION
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of March 9, 1999 (the
"Agreement"), between SUN ENERGY PARTNERS, L.P., a Delaware limited partnership
(the "Partnership"), and XXXX-XxXXX ENERGY CORPORATION, a Delaware corporation
(the "Company").
BACKGROUND
The Board of Directors of the Company (the "Board of Directors") has
approved on behalf of the Company, and Xxxx-XxXxx Corporation, a Delaware
corporation (the "Parent"), in its capacity as managing general partner of the
Partnership, has approved on behalf of the Partnership, upon the terms and
subject to the conditions set forth in this Agreement, the merger of the Company
into the Partnership (the "Merger"), whereby each outstanding LP Unit (as
defined in the Second Amended and Restated Agreement of Limited Partnership of
the Partnership, as amended (the "Partnership Agreement")) not owned by the
Company or any of its affiliates will be converted into the right to receive the
Merger Consideration (as hereinafter defined).
Pursuant to Section 17-211(b) of the DRULPA (as defined below), the
Parent, in its capacities as (i) the sole general partner of the Partnership and
(ii) the holder of more than 50% of the LP Units, has executed a written consent
approving the Merger.
Now, therefore, the Partnership and the Company hereby agree as
follows:
ARTICLE I
THE MERGER
SECTION I.1 The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the relevant provisions of the Delaware General
Corporation Law (the "DGCL") and the Delaware Revised Uniform Limited
Partnership Act (the "DRULPA"), the Company shall be merged with and into the
Partnership as soon as practicable following the satisfaction or waiver of the
conditions set forth in Article IV. Following the Merger, the Partnership shall
continue as the surviving entity (the "Surviving Entity") and shall continue its
existence under the laws of the State of Delaware, and the separate existence of
the Company shall cease. At the election of the Parent, any direct or indirect
wholly-owned subsidiary of the Parent may be substituted for the Company as a
constituent party in the Merger.
SECTION I.2 Effective Time. As soon as practicable following the
satisfaction or waiver of the conditions set forth in Article IV, but in no
event before a 20-day period shall have elapsed from the date of mailing to
holders of LP Units of an information statement with respect to the Merger, the
Merger shall be consummated by filing with the Secretary of State of the State
of Delaware a certificate of merger or other appropriate documents (in any case,
the "Certificate of Merger") in accordance with the DGCL and the DRULPA. The
Merger shall become effective at such time as the Certificate of Merger is duly
filed, or at such other time as the Partnership and the Company shall specify in
the Certificate of Merger (the time the Merger becomes effective being the
"Effective Time").
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SECTION I.3 Effects of the Merger. The Merger shall have the effects
set forth in Section 259 of the DGCL and Section 17-211 of the DRULPA.
SECTION I.4 Certificate of Limited Partnership and Partnership
Agreement. The Certificate of Limited Partnership and the Partnership Agreement
of the Partnership shall be the certificate of limited partnership and
partnership agreement of the Surviving Entity until thereafter changed or
amended as provided therein or by applicable law.
SECTION I.5 General Partner. The Parent shall be the managing general
partner of the Surviving Entity until the earlier of its resignation or removal
or until its successor is duly appointed or elected pursuant to the Partnership
Agreement.
SECTION I.6 Conversion of Units. At the Effective Time, by virtue of
the Merger and without any action on the part of the Partnership, the Company or
the holders of any of the following securities:
(a) each LP Unit held by the Parent or any affiliate of the
Parent shall be canceled and retired and shall cease to exist, and no
payment or consideration shall be made with respect thereto;
(b) each issued and outstanding LP Unit, other than LP Units
referred to in paragraph (a) above, shall be converted into the right
to receive from the Surviving Entity an amount in cash, without
interest, equal to $4.52 per LP Unit (the "Merger Consideration") less
any required withholding taxes. At the Effective Time, all such LP
Units shall cease to be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such LP Unit shall cease to have any rights with
respect thereto, except the right to receive the Merger Consideration,
without interest; and
(c) all of the issued and outstanding shares of capital stock
of the Company shall be converted into and become a number of LP Units
equal to the number of LP Units canceled and retired pursuant to
paragraphs (a) and (b) above.
ARTICLE II
EXCHANGE OF UNITS
SECTION II.1 Exchange of Certificates.
(a) Prior to the Effective Time, the Company shall appoint a
bank or trust company to act as disbursing agent (the "Disbursing
Agent") for the payment of Merger Consideration upon surrender of
certificates representing the LP Units. The Company will enter into a
disbursing agent agreement with the Disbursing Agent, in form and
substance reasonably acceptable to the Company, and shall deposit or
cause to be deposited with the Disbursing Agent in trust for the
benefit of the holders of LP Units cash in an aggregate amount
necessary to make the payments pursuant to Section 1.06 to holders of
LP Units (such amounts being hereinafter referred to as the "Exchange
Fund"). The Disbursing Agent shall, pursuant to irrevocable
instructions, make the payments provided for in the preceding sentence
out of the Exchange Fund. The Disbursing Agent shall invest portions of
the Exchange Fund as the Company directs, provided that such
investments shall be in obligations of or guaranteed by the United
States of America, in commercial paper obligations receiving the
highest rating from either Xxxxx'x Investors Service, Inc. or Standard
& Poor's Corporation, or in certificates of deposit, bank repurchase
agreements or banker's acceptances of commercial banks with capital
exceeding $100 million. The Exchange Fund shall not be used for any
other purpose, except as provided in this Agreement.
(b) Promptly after the Effective Time, the Surviving Entity
shall cause the Disbursing Agent to mail to each person who was a
record holder as of the Effective Time of an outstanding certificate or
certificates which immediately prior to the Effective Time represented
Depositary Units (as defined in the Partnership Agreement) representing
LP Units (the "Certificates"), and whose LP Units were converted into
the right to receive Merger Consideration pursuant to Section 1.06, a
form of letter of transmittal (which
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shall specify that delivery shall be effected, and risk of loss with
respect to the Certificates shall pass, only upon proper delivery of
the Certificates to the Disbursing Agent) and instructions for use in
effecting the surrender of the Certificate in exchange for payment of
the Merger Consideration. Upon surrender to the Disbursing Agent of a
Certificate, together with such letter of transmittal duly executed
and such other documents as may be reasonably required by the
Disbursing Agent, the holder of such Certificate shall be paid in
exchange therefor cash in an amount equal to the product of the number
of LP Units represented by such Certificate multiplied by the Merger
Consideration, and such Certificate shall forthwith be canceled. No
interest will be paid or accrued on the cash payable upon the
surrender of the Certificates. If payment is to be made to a person
other than the person in whose name the Certificate surrendered is
registered, it shall be a condition of payment that the Certificate so
surrendered be properly endorsed or otherwise be in proper form for
transfer and that the person requesting such payment pay any transfer
or other taxes required by reason of the payment to a person other
than the registered holder of the Certificate surrendered or establish
to the satisfaction of the Surviving Entity that such tax has been
paid or is not applicable. Until surrendered in accordance with the
provisions of this Section 2.01, each Certificate (other than
Certificates representing LP Units owned by the Parent or any
affiliate of the Parent) shall represent for all purposes only the
right to receive the Merger Consideration in cash multiplied by the
number of LP Units represented by such Certificate, without any
interest thereon.
(c) At and after the Effective Time, there shall be no
registration of transfers of LP Units and the Partnership shall
instruct the depositary for the Depositary Units not to register
transfers of the Depositary Units which were outstanding immediately
prior to the Effective Time. From and after the Effective Time, the
holders of LP Units outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such LP Units except as
otherwise provided in this Agreement or by applicable law. All cash
paid upon the surrender of Certificates in accordance with the terms of
this Article II shall be deemed to have been paid in full satisfaction
of all rights pertaining to the LP Units previously represented by such
Certificates. If, after the Effective Time, Certificates are presented
to the Surviving Entity for any reason, such Certificates shall be
canceled and exchanged for cash as provided in this Article II. At any
time more than one year after the Effective Time, the Surviving Entity
shall be entitled to require the Disbursing Agent to deliver to it any
funds which had been made available to the Disbursing Agent and not
disbursed in exchange for Certificates (including, without limitation,
all interest and other income received by the Disbursing Agent in
respect of all such funds). Thereafter, holders of LP Units shall look
only to the Surviving Entity (subject to abandoned property, escheat
and other similar laws) as general creditors thereof with respect to
any Merger Consideration that may be payable, without interest, upon
due surrender of the Certificates held by them. Notwithstanding the
foregoing, neither the Surviving Entity nor the Disbursing Agent shall
be liable to any holder of an LP Unit for any Merger Consideration
delivered in respect of such LP Unit to a public official pursuant to
any abandoned property, escheat or other similar law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION III.1 Representations and Warranties of Each Party. Each of the
Company and the Partnership represent and warrant to the other that:
(a) such company is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization
and has the requisite power and authority to carry on its respective
business as now conducted;
(b) such company has the requisite power and authority to
enter into this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement by such company
and the consummation of the transactions contemplated hereby have been
duly authorized by all requisite organizational action and no other
organizational proceeding is necessary therefor. This Agreement has
been duly executed and delivered by such company and constitutes the
valid and binding obligation of such company, enforceable against each
such company in accordance with its terms;
(c) neither the execution and delivery hereof by such company,
nor the consummation of the transactions contemplated hereby, nor
compliance with the provisions hereof will (A) violate or conflict
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with or result in the breach of or default (whether following lapse of
time or notice of both), or terminate or accelerate any right or
obligation, or create any lien upon any property or assets of such
company or any of its subsidiaries, under any of the terms of (x) the
organization documents of such company or its subsidiaries or (y) any
material debt or other agreement to which such company or its
subsidiaries or the assets or properties thereof may be subject; or
(B) violate any judgment, ruling, order, writ, injunction, statute,
rule or regulation applicable to such company; except in the case of
clauses (A) and (B) above, for such violations, conflicts, breaches,
defaults, terminations, accelerations or liens which, in the
aggregate, would not have a material adverse effect on the
transactions contemplated hereby or on the condition (financial or
other), business or operations of such company and its subsidiaries,
taken as a whole. Other than under the DRULPA, the DGCL, the federal
securities laws, the "blue sky" regulations of various states, and the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, to the knowledge
of such company no notice to, filing with, or authorization of any
domestic or foreign public body or authority is required for the
consummation of the transactions contemplated hereby; and
(d) the Parent, as managing general partner of the
Partnership, has received the opinion of Xxxxxx Brothers Inc. dated
March 9, 1999, to the effect that the consideration to be paid to the
holders of the LP Units (other than the Parent and any other holders of
LP Units that are affiliates of the Parent) in connection with the
Merger is fair to such holders of LP Units from a financial point of
view (the "Fairness Opinion").
SECTION III.2 Additional Representations and Warranties of the
Partnership. The Partnership represents and warrants as follows: Since December
31, 1998, the business of the Partnership has not undergone any material adverse
change.
ARTICLE IV
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION IV.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger are
subject to the satisfaction or waiver, prior to the Effective Time, of the
following conditions:
(a) no statute, rule, regulation, executive order, decree,
injunction or other order (whether temporary, preliminary or
permanent), shall have been enacted, entered, promulgated or enforced
by any court or governmental authority which is in effect and has the
effect of prohibiting the consummation of the Merger; provided that
each of the parties shall have used its best efforts to prevent the
entry of any injunction or other order and to appeal as promptly as
possible any injunction or other order that may be entered;
(b) there shall not be pending or threatened against the
Partnership, the Parent, or the Company, or any affiliate of the
Partnership, the Parent, or the Company, or the property or business of
the Partnership, the Parent, or the Company, any other action, suit or
proceeding involving a claim at law or in equity or before or by any
federal, state, or municipal or other government department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, relating to the Merger or this Agreement that would be
reasonably likely to have a material adverse effect on the condition,
financial or otherwise, of the Partnership, the Parent, or the Company;
(c) the parties shall have received any necessary governmental
consents or approvals and the waiting period (and any extension
thereof) applicable to the consummation of the Merger under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, if
any, shall have expired or been terminated and a 20-day period shall
have elapsed from the date of mailing to holders of LP Units of an
information statement with respect to the Merger; and
(d) the Fairness Opinion shall not have been withdrawn or
modified in any manner materially adverse to the Parent, the Company or
the Partnership.
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SECTION IV.2 Abandonment. The Company shall have the option, at any
time prior to the Effective Time, to abandon the Merger; provided, that if the
Company decides to exercise such option, the Company shall provide prompt
written notice thereof to the Partnership.
ARTICLE V
MISCELLANEOUS
SECTION V.1 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
SECTION V.2 Entire Agreement; Assignment. This Agreement constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof. Except as set forth in this Agreement, neither this Agreement nor any
right, interest or obligation under this Agreement shall be assigned, in whole
or in part, by operation of law or otherwise without the prior written consent
of the other parties.
SECTION V.3 Validity. In the event any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby.
SECTION V.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Delaware
regardless of the laws that might otherwise govern under principles of conflicts
of laws applicable thereto.
SECTION V.5 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION V.6 Parties in Interest. Nothing in this Agreement, express or
implied, is intended to confer upon any person other than the parties to this
Agreement any rights or remedies of any nature whatsoever under or by reason of
this Agreement.
SECTION V.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement, and shall become effective when one
or more counterparts have been signed by each of the parties and delivered to
the other parties.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its respective officers thereunto duly authorized, all
as of the day and year first above written.
SUN ENERGY PARTNERS, L.P.
By: Xxxx-XxXxx Corporation,
its Managing General Partner
By: /s/ XXXXXXX X. XXXXXX, XX. [STAMP]
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Xxxxxxx X. Xxxxxx, Xx.
Senior Vice President
XXXX-XxXXX ENERGY CORPORATION
By: /s/ XXXX X. XXXX [STAMP]
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Xxxx X. Xxxx
Vice President
Signature Page of Agreement and Plan of Merger Dated as of March 9, 1999
Between Sun Energy Partners, L.P. And Xxxx-XxXxx Energy Corporation
