AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this
Merger Agreement), dated as of March 29, 2013,
pursuant to Section 18-209 of the Delaware Limited Liability
Company Act (the DLLCA), is by and between SALIENT
ABSOLUTE RETURN INSTITUTIONAL FUND
(DELAWARE), LLC, a Delaware limited liability company
(Salient), and SALIENT ABSOLUTE RETURN FUND
(DELAWARE), LLC, a Delaware limited liability company
(the Merging Company).
WHEREAS, each of the parties hereto desires that the
Merging Company merge with and into Salient as hereinafter
specified, with Salient being the surviving entity (such merger,
the Merger); and
WHEREAS, Salient and the Merging Company have
determined that it is advisable and in the best interests of each
of such entities that the Merging Company merge with and into
Salient upon the terms and subject to the conditions herein
provided, and have approved and adopted this Merger
Agreement.
NOW, THEREFORE, the parties to this Merger
Agreement, in consideration of the mutual covenants,
agreements and provisions hereinafter contained, do hereby
prescribe the terms and conditions of the Merger and mode of
carrying the same into effect as follows:
FIRST: At the Effective Time (as hereinafter defined), the
Merging Company shall be merged with and into Salient, with
Salient being the surviving entity.
SECOND: As each party is wholly owned by Salient
Alternative Strategies I Fund, a Delaware statutory trust and,
accordingly, each is disregarded as an entity for U.S. federal
income tax purposes, the Merger is intended to be tax-free.
THIRD: The manner of converting the outstanding
membership interests of the Merging Company into interests in
Salient shall be as follows:
At the Effective Time, each limited liability company
membership interest in the Merging Company, issued and
outstanding immediately prior to the Effective Time, shall be
automatically converted into the right to receive a single limited
liability company membership in Salient (the Merger
Consideration), and such limited liability company
membership interest in the Merging Company shall be canceled
and cease to exist, and the holder of any such membership
interest in the Merging Company shall thereafter cease to have
any rights with respect to such membership interest in the
Merging Company, except the right to receive the Merger
Consideration.
FOURTH: The terms and conditions of the Merger are as
follows:
(a) at the Effective Time, the separate existence of the
Merging Company shall cease, and the Merging Company shall
be merged with and into Salient. Salient, as the surviving
entity, shall thereupon and thereafter possess all the rights,
privileges, powers and franchises of the Merging Company (of
a public as well as of a private nature) and shall be subject to all
of the restrictions, disabilities and duties of the Merging
Company, all as provided under Section 18-209 of the
DLLCA;
(b) all property of the Merging Company, real, personal
and mixed, all debts due to the Merging Company on whatever
account and all other things in action or belonging to the
Merging Company shall be vested in Salient;
(c) all debts, liabilities, duties and other obligations of
the Merging Company under any and all indentures,
agreements, letters of credit, notes, guarantees or other
agreements or other instruments to which the Merging
Company is a party or by which it is bound shall attach to
Salient and may be enforced against Salient to the same extent
as if said debts, liabilities and duties had been incurred or
contracted by Salient;
(d) Salient expressly assumes all debts, liabilities, duties
and other obligations of the Merging Company under any and
all indentures, agreements, letters of credit, notes, guarantees or
other agreements or other instruments to which the Merging
Company is a party or by which it is bound; and
(e) any claim existing or action or proceeding pending
by or against the Merging Company may be prosecuted as if
the Merger had not taken place, and/or Salient may be
proceeded against or substituted in place of the Merging
Company.
FIFTH: The Merger shall become effective upon the filing of a
Certificate of Merger with the Delaware Secretary of State or
at such other time as the parties may agree and as shall be
stated in such Certificate of Merger (the Effective Time).
SIXTH: The certificate of formation of Salient, as in effect
immediately prior to the Effective Time, shall be the certificate
of formation of the surviving entity. The managing member of
the Merging Company immediately prior to the Effective Time
shall be the managing member of the surviving entity.
SEVENTH: From time to time, as and when required by
Salient as the surviving entity or by its successors and assigns,
there shall be executed and delivered on behalf of the Merging
Company such deeds and other instruments, and there shall be
taken or caused to be taken all such further and other action as
shall be appropriate or necessary in order to vest, perfect or
confirm, of record or otherwise, in Salient the title to and
possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of the Merging
Company and otherwise to carry out the purposes of this
Merger Agreement, and the managing member of Salient is
fully authorized in the name and on behalf of the Merging
Company or otherwise to take any and all action to execute and
deliver any and all such deeds and other instruments.
EIGHTH: All rights and obligations under this Merger
Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to
principles of conflicts of laws.
IN WITNESS WHEREOF, this Agreement and Plan of
Merger has been duly executed and delivered by the duly
authorized signatories of the parties hereto as of the date first
above written.
SALIENT ABSOLUTE RETURN
INSTITUTIONAL FUND
(DELAWARE), LLC
By: , its managing member
By: /s/ Xxxx X. Xxxxx
Name:
Title:
SALIENT ABSOLUTE RETURN
FUND (DELAWARE), LLC
By: , its managing member
By: /s/ Xxxx X. Xxxxx
Name:
Title:
