AGREEMENT AND PLAN OF MERGER
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of November 30, 2007, by and between Xxxxxxx
Exploration, LP, a Delaware limited partnership (“Exploration LP”), and Xxxxxxx Exploration II,
LLC, a Delaware limited liability company (“Exploration LLC”). Exploration LP and Exploration LLC
are hereinafter collectively referred to as the “Merging Entities.”
W I T N E S S E T H:
Whereas, Exploration LLC is a limited liability company duly organized and validly
existing under the laws of the State of Delaware, with its registered office at 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and with its principal executive offices at 0000
XxXxxxxx, Xxxxx 000, Xxxxxxx, XX 00000;
Whereas, Exploration LP is a limited partnership duly organized and validly existing
under the laws of the State of Delaware, with its registered office at 0000 Xxxxxx Xxxxxx, Xxxx of
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, and with its principal executive offices at 0000
XxXxxxxx, Xxxxx 000, Xxxxxxx, XX 00000; and
Whereas, the respective general and limited partner of Exploration LP, and the sole
member of Exploration LLC, deem it desirable and in the best interests of Exploration LP and
Exploration LLC, as applicable, to merge Exploration LP into Exploration LLC, pursuant to the
provisions of Section 17-211 of the Delaware Revised Uniform Limited Partnership Act and Section
18-209 of the Delaware Limited Liability Company Act, and have proposed, declared advisable, and
approved such merger pursuant to this Agreement and Plan of Merger (the “Agreement”), which
Agreement has been duly approved by resolutions of the general and limited partners of Exploration
LP and the sole member of Exploration LLC;
Now, Therefore, in consideration of the premises and of the mutual covenants and
agreements herein contained, and in order to prescribe the terms and conditions of the merger, the
mode of carrying the same into effect, the manner and basis of converting the limited partnership
interests of Exploration LP into membership interests of Exploration LLC, and such other details
and provisions as are deemed necessary or proper, the parties hereby agree as follows:
ARTICLE I.
Merger
Merger
1.1 Surviving Entity. Subject to the conditions hereinafter set forth, the Merging Entities
shall be, upon the effective date of the merger as defined in Section 1.2 hereof, merged into a
single surviving entity, which shall be Exploration LLC and which shall continue its corporate
existence as “Xxxxxxx Exploration LLC” and remain a Delaware limited liability company, governed by
and subject to the laws of that State.
1.2 Effective Time. The merger shall become effective at the date and time designated in the
Articles of Merger filed with the Secretary of State of Delaware following its adoption,
execution in accordance with Section 17-211 of the Delaware Revised Uniform Limited
Partnership Act and Section 18-209 of the Delaware Limited Liability Company Act. The date upon
which the merger shall become effective, as defined by this Section 1.2, is referred to in this
Agreement as the “Effective Time.”
ARTICLE II.
Continued Existence of Surviving Entity
2.1 Existence. The identity, existence, purposes, powers, objects, franchises, rights, and
immunities of Exploration LLC, the Surviving Entity, shall continue unaffected and unimpaired by
the merger, and the corporate identity, existence, purposes, powers, objects, franchises, rights,
and immunities of the Merging Entities shall be wholly merged into Exploration LLC. Accordingly,
at the Effective Time, the separate existence of the Merging Entities, except insofar as continued
by statute, shall cease.
ARTICLE III.
Governing Law and Certificate of Formation of Surviving Entity
3.1 Delaware Law Governs and Exploration LLC’s Certificate of Formation Survives. The laws of
Delaware shall continue to govern the Surviving Entity. At and after the Effective Time, the
Certificate of Formation of Exploration LLC, as in effect at the Effective Time, shall be the
Certificate of Formation of the Surviving Entity until thereafter amended in the manner provided by
law.
ARTICLE IV.
Limited Liability Company Agreement of Surviving Entity
4.1 Exploration LLC’s Limited Liability Company Agreement Survives. At and after the
Effective Time, the Limited Liability Company Agreement of Exploration LLC shall be the Limited
Liability Company Agreement of the Surviving Entity until the same shall be altered, amended, or
repealed, or until a new Limited Liability Company Agreement shall be adopted in accordance with
the provisions of law, the Certificate of Formation and the Limited Liability Company Agreement of
the Surviving Entity.
ARTICLE V.
Membership Interests of Surviving Entity
5.1 Membership Interests as in Exploration LLC’s Limited Liability Company Agreement. The
rights and limitations of the membership interests of the Surviving Entity, and the express terms
thereof, shall be as set forth in the Limited Liability Company Agreement of the Surviving Entity
as adopted pursuant to Section 4.1 hereof.
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ARTICLE VI.
Conversion of Partnership Interests on Merger
6.1 General. The manner and basis of converting the outstanding partnership interests of the
partners of Exploration LP into the membership interests of Exploration LLC shall be as hereinafter
set forth in this Article VI.
6.2 Conversion of Exploration LP’s Partnership Interests. At the Effective Time, the
partnership interests of Exploration LP then issued and outstanding, without any action on the part
of the holders thereof, shall automatically become and be converted into membership interests of
the Surviving Entity.
6.3 Exploration LP’s Transfer Books Closed. At the Effective Time, the transfer books of
Exploration LP shall be deemed closed, and no transfer of partnership interests of Exploration LP
shall thereafter be made or consummated.
ARTICLE VII.
Assets and Liabilities
7.1 Assets and Liabilities of Merging Entities Become Those of Surviving Entity. At the
Effective Time, all rights, privileges, powers, immunities, and franchises of each of the Merging
Entities, both of a public and private nature, and all property, real, personal, and mixed, and all
debts due on whatever account, as well as stock subscriptions and all other chooses or things in
action, and all and every other interest of or belonging to or due to either of the Merging
Entities, shall be taken by and deemed to be transferred to and shall be vested in the Surviving
Entity without further act or deed, and all such rights, privileges, powers, immunities,
franchises, property, debts, chooses or things in action, and all and every other interest of the
Merging Entities shall be thereafter as effectually the property of the Surviving Entity as they
were of the respective Merging Entities, and the title to any real or other property, or any
interest therein, whether vested by deed or otherwise, in either of the Merging Entities, shall not
revert or be in any way impaired by reason of the merger; provided, however, that all rights of
creditors and all liens upon any properties of each of the Merging Entities shall be preserved
unimpaired, and all debts, liabilities, restrictions obligations, and duties of the respective
Merging Entities, including without limitation all obligations, liabilities, and duties as lessee
under any existing lease, shall thenceforth attach to the Surviving Entity and may be enforced
against and by it to the same extent as if said debts, liabilities, restrictions, obligations, and
duties had been incurred or contracted by it. Any action or proceeding pending by or against
either of the Merging Entities may be prosecuted to judgment as if the merger had not taken place,
or the Surviving Entity may be substituted in place of either of the Merging Entities.
7.2 Accounting Treatment. The assets and liabilities of the Merging Entities shall be taken
up on the books of the Surviving Entity in accordance with generally accepted accounting
principles, and the partners’ capital accounts of the Surviving Entity shall be determined, in
accordance with generally accepted accounting principles, pursuant to the Limited Liability
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Company Agreement of the Surviving Entity. Nothing herein shall prevent any future changes
from being made in its accounts in accordance with applicable law.
7.3 Termination. This Agreement may be terminated at any time prior to the Effective Time, by
consent of Exploration LP, expressed by action of its general and limited partner.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed in
their respective names by their respective duly authorized officers, all as of the day and year
first above written.
| Xxxxxxx Exploration, LP, a Delaware limited partnership By: Xxxxxxx Exploration GP, LLC, its general partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Executive Vice President, Chief Financial Officer and Secretary |
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| Xxxxxxx Exploration II, LLC a Delaware limited liability company By: Xxxxxxx Exploration, LP, its sole member By: Xxxxxxx Exploration GP, LLC, its general partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Executive Vice President, Chief Financial Officer and Secretary |
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