EXHIBIT 10.53
AGREEMENT AND PLAN OF MERGER
(Employee Partnerships)
THIS AGREEMENT AND PLAN OF MERGER dated as of November 28, 2000, to be
effective as of the Closing Date (as defined below) (this "Merger Agreement"),
is entered into by and among Pioneer Natural Resources Company, a Delaware
corporation ("Pioneer"), Pioneer Natural Resources USA, Inc., a Delaware
corporation and wholly-owned subsidiary of Pioneer ("Pioneer USA"), and each of
the Texas limited partnerships referred to below (the "Partnerships").
RECITALS:
A. Pioneer USA is the sole general partner of each of the following
Partnerships:
Xxxxxx & Xxxxxxx Employees Producing Properties 87-A,Ltd. P&P Employees 90-B Conv., X.X.
Xxxxxx & Parsley Employees Producing Properties 87-B,Ltd. P&P Employees 90-C Conv., L.P.
P&P Employees Producing Properties 88-A, L.P. P&P Employees Private 90, L.P.
P&P Employees 89-A Conv., L.P. P&P Employees 90 Spraberry Private Development, L.P.
P&P Employees 89-B Conv., L.P. P&P Employees 91-A Conv., L.P.
P&P Employees Private 89, L.P. P&P Employees 91-B Conv., L.P.
P&P Employees 90-A Conv., L.P.
B. The board of directors of each of Pioneer and Pioneer USA has
determined that it is in the best interests of Pioneer and Pioneer USA to merge
each of the Partnerships with and into Pioneer USA and such board of directors
has approved the mergers referred to below, upon the terms and subject to the
conditions contained herein.
C. Pioneer USA intends to solicit the vote of the limited partners of
each Partnership holding at least a majority (or with respect to Xxxxxx &
Parsley Employees Producing Properties 87-A, Ltd., Xxxxxx & Xxxxxxx Employees
Producing Properties 87-B, Ltd. and P&P Employees Producing Properties 88-A,
L.P. (the "Super-Majority Partnerships"), at least 75%) of the outstanding
partnership interests of such Partnership to approve the merger for such
Partnership. Subject to certain limitations, upon consummation of the mergers,
the partners, other than Pioneer USA, will have the right to receive an amount
of cash.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
THE MERGERS
1.1 Mergers. At the Effective Time (as defined in Section 1.4), each
Partnership shall be merged with and into Pioneer USA, the separate existence of
such Partnership shall cease, and Pioneer USA, as the surviving corporation,
shall continue to exist by virtue of and shall be governed by the laws of the
State of Delaware.
1.2 Merger Values and Cash Offered. (a) At the Effective Time, by
virtue of the mergers and without any action on the part of Pioneer USA or the
other partners, each partnership interest outstanding immediately prior thereto
shall be converted into the right to receive a portion of the amount of cash
allocated to the respective Partnership, which portion shall be determined in
accordance with the merger value assigned to the Partnership pursuant to the
procedures set forth in the Proxy Statement (as defined in Section 4.2) and the
procedures set forth in such Partnership's partnership agreement for allocating
liquidation distributions. The merger value assigned to each Partnership and the
amount of cash offered to the limited partners in such Partnership pursuant to
the merger of such Partnership are set forth on Exhibit A hereto opposite the
name of such Partnership. The merger values will not be adjusted as of the
Closing Date.
(b) All partnership interests, when converted into the right to receive
cash, shall no longer be outstanding and shall automatically be cancelled and
retired and shall cease to exist, and each holder of a certificate representing
any such partnership interests shall cease to have any rights with respect
thereto, except the right to receive the amount of cash to be delivered in
consideration therefor.
(c) The partnership interests, whether general or limited, in the
participating partnerships held directly or indirectly by Pioneer USA shall be
cancelled without any consideration being received therefor; provided, however,
that as a result of the mergers, Pioneer USA will acquire 100% of the properties
of the participating partnerships, including properties attributable to its
partnership interests in those partnerships.
1.3 Closing. The closing of the mergers (the "Closing") shall take
place at the offices of Xxxxxx & Xxxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx
00000, as soon as practicable after the fulfillment of the conditions referred
to in Article 4, or at such other time and place as the parties shall agree (the
date of such Closing being the "Closing Date").
1.4 Effective Time of Mergers. Upon satisfaction of the conditions set
forth in Article 4 hereof and as soon as practicable after the Closing, this
Merger Agreement, or a certificate of merger setting forth the information
required by, and otherwise in compliance with, Section 263 of the General
Corporation Law of the State of Delaware (the "DGCL") with respect to the
mergers, shall be delivered for filing with the Secretary of State of the State
of Delaware. At such time, a certificate of merger with respect to the mergers
setting forth the information required by, and otherwise in compliance with,
Section 2.11 the Revised Limited Partnership Act of the State of Texas (the
"TRLPA") shall be delivered for filing with the Secretary of State of the State
of Texas. The mergers shall become effective upon the later of (a) the day and
at the time the Secretary of State of the State of Delaware files this Merger
Agreement or certificate of merger in compliance with Section 263 of the DGCL,
and (b) the day and at the time the Secretary of State of the State of Texas
files such certificate of merger in compliance with Section 2.11 of the TRLPA
(the time of such effectiveness is herein called the "Effective Time").
Notwithstanding the foregoing, by action of its board of directors, either
Pioneer or Pioneer USA, in its individual capacity or as the sole general
partner of the Partnerships, may terminate this Merger Agreement at any time
prior to the earlier of (a) the filing of this Merger Agreement or the
certificate of merger with respect to the mergers in compliance with Section 263
of the DGCL with the Secretary of State of the State of Delaware and (b) the
filing of the certificate of merger with respect to the mergers in compliance
with Section 2.11 of the TRLPA with Secretary of State of the State of Texas.
1.5 Effects of Mergers. At the Effective Time, Pioneer USA, without
further action, as provided by the laws of the State of Delaware and the State
of Texas, shall succeed to and possess all the rights, privileges, powers, and
franchises, of a public as well as of a private nature, of the Partnerships; and
all property, real, personal and mixed, and all debts due on whatsoever account,
including subscriptions to shares, and all other choses in action, and all and
every other interest, of or belonging to or due to the Partnerships shall be
deemed to be vested in Pioneer USA without further act or deed; and the title to
any real estate, or any interest therein, vested in Pioneer USA or the
Partnerships shall not revert or be in any way impaired by reason of the
mergers. Such transfer to and vesting in Pioneer USA shall be deemed to occur by
operation of law, and no consent or approval of any other person shall be
required in connection with any such transfer or vesting unless such consent or
approval is specifically required in the event of merger or consolidation by law
or express provision in any contract, agreement, decree, order, or other
instrument to which Pioneer USA or the Partnerships is a party or by which
either of them is bound. At and after the Effective Time, Pioneer USA shall be
responsible and liable for all debts, liabilities, and duties of the
Partnerships, including franchise taxes, if any, which may be enforced against
Pioneer USA to the same extent as if said debts, liabilities, and duties had
been incurred or contracted by it. Neither the rights of creditors nor any liens
upon the property of the Partnerships or Pioneer USA shall be impaired by the
mergers.
1.6 Certificate of Incorporation and Bylaws. The certificate of
incorporation of Pioneer USA before the mergers shall be and remain the
certificate of incorporation of Pioneer USA after the Effective Time, until the
same shall thereafter be altered, amended, or repealed in accordance with law
and Pioneer USA's certificate of incorporation. The bylaws of Pioneer USA as in
effect at the Effective Time shall be and remain the bylaws of Pioneer USA, as
the surviving corporation, until the same shall thereafter be altered, amended,
or repealed in accordance with law, Pioneer USA's certificate of incorporation,
or such bylaws.
1.7 Pioneer USA Common Stock. At the Effective Time, each outstanding
share of common stock of Pioneer USA shall remain outstanding and shall continue
to represent one share of common stock of Pioneer USA.
1.8 Officers and Directors. At the Effective Time, each of the persons
who was serving as an officer of Pioneer USA immediately prior to the Effective
Time shall continue to be an officer of Pioneer USA and shall continue to serve
in such capacity at the pleasure of the board of directors of Pioneer USA or, if
earlier, until their respective
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death or resignation. At the Effective Time, each of the persons who was serving
as a director of Pioneer USA immediately prior to the Effective Time shall
continue to be a director of Pioneer USA, and each shall serve in such capacity
until the next annual meeting of stockholders of Pioneer USA and until his or
her successor is elected and qualified or, if earlier, until his death,
resignation, or removal from office.
1.9 Exchange of Partnership Interests for Cash.
(a) Pioneer USA shall mail checks to the partners of record, other than
Pioneer USA, promptly following the Closing Date in payment of the merger
consideration. Limited partners of participating partnerships will not be
required to surrender partnership interest certificates to receive the cash
payment.
(b) After the Closing Date, there shall not be any further registration
of transfers on the transfer books of the Partnerships of the partnership
interests that were issued and outstanding immediately before the Closing Date
and were converted into the right to receive cash. If, after the Closing Date,
certificates representing partnership interests of participating partnerships
are presented, they shall be exchanged for cash, all as provided in this
Article.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Partnerships. Each of the
Partnerships hereby represents and warrants to Pioneer and Pioneer USA as
follows:
(a) Formation; Qualification. Such Partnership is a limited partnership
duly formed under the TRLPA and is validly existing and in good standing under
the laws of the State of Texas. Such Partnership has all requisite partnership
power and authority to own, operate or lease its properties and to carry on its
business as now being conducted. Such Partnership is duly qualified to do
business as a foreign limited partnership and is in good standing in each
jurisdiction where the character of its properties owned, operated or leased, or
the nature of its activities, makes such qualifications necessary.
(b) Capitalization. All of the outstanding partnership interests of
such Partnership are duly authorized, validly issued, free of preemptive rights
and nonassessable. Except as described in the Proxy Statement, there are no
outstanding subscriptions, options or other arrangements or commitments
obligating such Partnership to issue any additional partnership interests.
(c) No Conflicts. Assuming this Merger Agreement is approved by the
requisite vote of the limited partners, consummation of the transactions
contemplated hereby and compliance with the terms and provisions of this Merger
Agreement will not conflict with, result in a breach of, require notice under or
constitute a default under any material judgment, order, injunction, decree or
ruling of any court or governmental authority or under any material agreement,
indenture or instrument to which such Partnership is a party.
(d) Authority, Authorization and Enforceability. Such Partnership has
all requisite power and authority to enter into and perform the provisions of
this Merger Agreement. The execution and delivery of this Merger Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary partnership action on the part of such Partnership
other than the approval of the limited partners. Subject to such approval, this
Merger Agreement has been duly executed and delivered by such Partnership and
constitutes a valid and binding obligation of such Partnership enforceable in
accordance with its terms.
(e) Accuracy of Information. None of the information supplied or to be
supplied by such Partnership for inclusion in the Proxy Statement, as amended or
supplemented, will, at the time of the mailing of the Proxy Statement, the time
of the special meetings of the limited partners of the Partnerships (the
"Special Meetings") or the Closing Date, be false or misleading with respect to
any material fact, contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
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2.2 Representations and Warranties of Pioneer and Pioneer USA. Pioneer
and Pioneer USA hereby represent and warrant to the Partnerships as follows:
(a) Organization; Qualification. Each of Pioneer and Pioneer USA is a
corporation duly formed under the DGCL and is validly existing and in good
standing under the laws of the State of Delaware. Each of Pioneer and Pioneer
USA has all requisite corporate power and authority to own, operate or lease its
properties and to carry on its business as now being conducted. Each of Pioneer
and Pioneer USA is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction where the character of its properties
owned, operated or leased, or the nature of its activities, makes such
qualifications necessary.
(b) No Conflicts. Consummation of the transactions contemplated hereby
and compliance with the terms and provisions of this Merger Agreement will not
conflict with, result in a breach of, require notice under or constitute a
default under any material judgment, order, injunction, decree or ruling of any
court or governmental authority or under any material agreement, indenture or
instrument to which Pioneer or Pioneer USA is a party.
(c) Authority, Authorization and Enforceability. Each of Pioneer and
Pioneer USA has all requisite corporate power and authority to execute and
deliver this Merger Agreement and to perform the provisions of this Merger
Agreement. The execution and delivery of this Merger Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of each of Pioneer and Pioneer
USA. This Merger Agreement has been duly executed and delivered by each of
Pioneer and Pioneer USA and constitutes a valid and binding obligation of each
of Pioneer and Pioneer USA enforceable in accordance with its terms.
(d) Accuracy of Information. None of the information supplied or to be
supplied by each of Pioneer and Pioneer USA for inclusion in the Proxy
Statement, as amended or supplemented, will, at the time of the mailing of the
Proxy Statement, the time of the Special Meetings or the Closing Date, be false
or misleading with respect to any material fact, contain any untrue statement of
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) Capacity as General Partner. Pioneer USA is the sole general
partner of each of the Partnerships.
ARTICLE 3
CONDITIONS PRECEDENT TO MERGERS
3.1 Conditions to Each Party's Obligations to Effect the Mergers. The
respective obligations of each party to effect the mergers shall be subject to
the fulfillment (or waiver in whole or in part by the intended beneficiary
thereof in its sole discretion) at or prior to the Closing Date of the following
conditions:
(a) This Merger Agreement, an amendment to the partnership agreements
to permit the mergers (the "Merger Amendment"), the selection of special counsel
for the limited partners and that counsel's legal opinion referred to in Section
3.1(b) shall have been approved by the limited partners holding at least a
majority (or, with respect to the Super-Majority Partnerships, at least 75%) of
the outstanding limited partnership interests voting in person or by proxy at
the Special Meetings at which a quorum is present, with respect to each merger.
(b) The receipt, on or prior to the Closing Date, by Pioneer USA of the
opinion of special legal counsel for the limited partners pursuant to the
partnership agreements of the Partnerships.
(c) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the mergers and
the transactions related thereto.
(d) No suit, action or proceeding shall have been filed or otherwise be
pending against Pioneer, Pioneer USA or any officer, director or affiliate of
Pioneer or Pioneer USA challenging the legality or any aspect of the mergers or
the transactions related thereto.
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(e) The parties to the mergers having made all filings and
registrations with, and notifications to, all third parties, including, without
limitation, lenders and all appropriate regulatory authorities, required for
consummation of the transactions contemplated by this Merger Agreement (other
than the filing and recordation of appropriate merger documents required by the
DGCL and the TRLPA), and all approvals and authorizations and consents of all
third parties, including, without limitation, lenders and all regulatory
authorities, required for consummation of the transactions contemplated by this
Merger Agreement shall have been received and shall be in full force and effect,
except for such filings, registrations, notifications, approvals, authorizations
and consents, the failure of which to make or obtain would not have a material
adverse effect on the business or financial condition of Pioneer, Pioneer USA or
the Partnerships.
(f) The absence of any opinion of counsel that the exercise by the
limited partners of the right to approve the mergers is not permitted under
applicable state law.
3.2 Conditions to Obligations of Pioneer and Pioneer USA to Effect the
Mergers. The obligations of Pioneer and Pioneer USA to effect the mergers shall
be subject to the fulfillment (or waiver in whole or in part by the intended
beneficiary thereof in its sole discretion), at or prior to the Closing Date, of
the following additional conditions:
(a) Each of the Partnerships shall have performed in all material
respects its agreements contained in this Merger Agreement required to be
performed at or prior to the Closing Date.
(b) The representations and warranties of each of the Partnerships
contained in this Merger Agreement shall be true and correct in all material
respects at and as of the Closing Date as if made at and as of such time unless
they relate to another specified time.
3.3 Conditions to Obligations of the Partnerships to Effect the
Mergers. The obligations of each of the Partnerships to effect its respective
merger shall be subject to the fulfillment (or waiver in whole or in part by the
intended beneficiary thereof in its sole discretion) at or prior to the Closing
Date of the following additional conditions:
(a) Each of Pioneer and Pioneer USA shall have performed in all
material respects its agreements contained in this Merger Agreement required to
be performed at or prior to the Closing Date.
(b) The representations and warranties of each of Pioneer and Pioneer
USA contained in this Merger Agreement shall be true and correct in all material
respects at and as of the Closing Date as if made at and as of such time unless
they relate to another specific time.
ARTICLE 4
ADDITIONAL AGREEMENTS
4.1 Conduct of Business Pending the Mergers. Each of the Partnerships
covenants and agrees that, between the date of this Merger Agreement and the
Closing Date, unless the other parties shall otherwise agree in writing or as
otherwise contemplated in this Merger Agreement, they shall conduct their
respective businesses only in the ordinary course of business and in a manner
consistent with past practice, and they shall not take any action except for
actions consistent with such practice. Each of the Partnerships shall use their
respective reasonable best efforts to preserve intact the business organization
of the Partnerships, to keep available the services of the present officers,
employees and consultants of the Partnerships, and to preserve their
relationships with customers, suppliers and other persons with which they have
significant business dealings.
4.2 Special Meetings; Proxies. As soon as reasonably practicable after
the execution of this Merger Agreement, Pioneer USA will take all action
necessary to duly call, give notice of, convene and hold the Special Meetings to
consider and vote upon approval of this Merger Agreement, the Merger Amendment,
the selection of special legal counsel for the limited partners, that counsel's
legal opinion referred to in Section 3.1(b) and the transactions contemplated
hereby and thereby. Pioneer USA will use its reasonable best efforts to cause a
proxy statement (the "Proxy Statement") to be mailed to the limited partners as
soon as practicable to solicit from the limited partners proxies in favor of
this Merger Agreement, the Merger Amendment, the selection of special legal
counsel for the limited partners, that counsel's legal opinion referred to in
Section 3.1(b) and the transactions contemplated hereby and thereby,
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and to take all other action necessary or advisable to secure any vote or
consent of the limited partners required by the partnership agreements of the
Partnerships or this Merger Agreement or applicable law to effect the mergers.
4.3 Additional Agreements. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable commercial
efforts to obtain in a timely manner all necessary waivers, consents and
approvals and to effect all necessary registrations and filings, and to use all
reasonable commercial efforts to take, or cause to be taken, all other actions
and to do, or cause to be done, all other things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective as
promptly as practicable the transactions contemplated by this Merger Agreement.
ARTICLE 5
TERMINATION
5.1 Termination. This Merger Agreement may be terminated and the
mergers contemplated hereby may be abandoned, in whole or in part, with respect
to any or all of the partnerships at any time prior to the Effective Time,
whether before or after approval of the mergers by the limited partners:
(a) By mutual written consent of the parties;
(b) By any party, if:
(i) there shall be any applicable law, rule or regulation that
makes consummation of the mergers illegal or otherwise
prohibited or if any judgment, injunction, order or decree
enjoining any party from consummating the mergers is entered and
such judgment, injunction, order or decree shall have become
final and non-appealable;
(ii) at the Special Meetings or at any adjournment or
postponement thereof, the limited partners' approval referred to
in Section 3.1(a) shall not have been obtained by reason of the
failure to obtain the requisite vote; or
(iii) there shall be any pending suit, action or proceeding
filed against Pioneer, Pioneer USA, any of the Partnerships or
any officer, director or affiliate of Pioneer or Pioneer USA
challenging the legality or any aspect of the mergers or the
transactions related thereto;
(c) By Pioneer, if Pioneer USA or any Partnership shall have failed to
perform its agreements and covenants contained herein, which failure has a
material adverse effect on Pioneer USA or such Partnership, as the case may be,
or materially and adversely affects the transactions contemplated by this Merger
Agreement;
(d) By Pioneer USA or any of the Partnerships with respect to the
Partnership's merger, if Pioneer shall have failed to perform its agreements and
covenants contained herein, which failure has a material adverse effect on
Pioneer USA or that Partnership, as the case may be, or materially and adversely
affects the transactions contemplated by this Merger Agreement;
(e) By Pioneer or Pioneer USA, pursuant to Section 1.4 hereof;
(f) By Pioneer USA, if Pioneer USA, after considering the written
advice of legal counsel, determines in good faith that termination of this
Merger Agreement is required for Pioneer USA's board of directors to comply with
its fiduciary duties to its sole stockholder or to the Partnerships imposed by
applicable law; or
(g) By Pioneer, if there shall have occurred any event, circumstance,
condition, development or occurrence causing, resulting in or having a material
adverse effect (i) on any Partnership's business, operations, properties (taken
as a whole), condition (financial or otherwise), results of operations, assets
(taken as a whole), liabilities, cash flows or prospects, or (ii) on market
prices for oil and gas prevailing generally in the oil and gas industry since
the date of determination of the oil and gas commodity prices used in the
determination of the merger values.
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5.2 Effect of Termination. In the event of termination of this Merger
Agreement by a party as provided in Section 5.1, written notice thereof shall
promptly be given to the other party and this Merger Agreement shall forthwith
terminate without further action by either of the parties hereto. If this Merger
Agreement is terminated as provided, however, there shall be no liabilities or
obligations hereunder on the part of any party hereto except as provided in
Section 6.13 and except that nothing herein shall relieve any party hereto from
liability for any breach of this Merger Agreement.
ARTICLE 6
MISCELLANEOUS
6.1 Headings. The headings contained in this Merger Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Merger Agreement.
6.2 Amendment. This Merger Agreement may be supplemented, amended or
modified by an instrument in writing signed by Pioneer and Pioneer USA (on
behalf of itself and as (a) general partner and (b) attorney-in-fact for the
limited partners) at any time prior to the Closing Date; provided, however, that
after approval by the limited partners of this Merger Agreement, the Merger
Amendment, the selection of special legal counsel for the limited partners and
that counsel's legal opinion referred to in Section 3.1(b), no amendment may be
made which would change the type or amount of, or the method for determining,
the consideration to be received upon consummation of the mergers or which would
in any other way materially and adversely affect the rights of such limited
partners (other than a termination of this Merger Agreement or abandonment of
the mergers).
6.3 Waiver. At any time prior to the Closing Date, the parties hereto
may (a) extend the time for the performance of any of the obligations or other
acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto, and (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall not operate as
an extension or waiver of, or estoppel with respect to, any subsequent failure
of compliance or other failure. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid against such party if set forth in
an instrument in writing signed by such party.
6.4 Expiration of Representations and Warranties. All representations
and warranties made pursuant to this Merger Agreement shall expire with, and be
terminated and extinguished by, the mergers at the Closing Date.
6.5 Notices. All notices and other communications to be given or made
hereunder by any party shall be delivered by first class mail, or by personal
delivery, postage or fees prepaid, (a) to Pioneer at 0000 Xxxxxxxx Xxxxxx West,
0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxxx X. Xxxxxxx, with
a copy to Xxxxxx & Xxxxxx L.L.P., 3700 Xxxxxxxx Xxxx Center, 0000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attn: Xxxxxxx X. Xxxxxxx, and (b) to the other parties at
Pioneer Natural Resources USA, Inc., 0000 Xxxxxxxx Xxxxxx West, 0000 Xxxxx
X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxxx X. Xxxxxxx.
6.6 Counterparts. This Merger Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
6.7 Severability. If any term or other provision of this Merger
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Merger Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party.
6.8 Entire Agreement. This Merger Agreement, including the documents
and instruments referred to herein, constitutes the entire agreement and
supersedes all other prior agreements and undertakings, both written and oral,
between the parties, or any of them, with respect to the subject matter hereof.
6.9 Remedies. Except as otherwise expressly provided herein, this
Merger Agreement is not intended to confer upon any other person any rights or
remedies hereunder.
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6.10 Assignment. This Merger Agreement shall not be assigned by
operation of law or otherwise without the consent of all parties hereto.
6.11 No Implied Waiver. Except as expressly provided in this Merger
Agreement, no course of dealing among the parties hereto and no delay by any of
them in exercising any right, power or remedy conferred herein or now or
hereafter existing at law or in equity, by statute or otherwise, shall operate
as a waiver of, or otherwise prejudice, any such right, power or remedy.
6.12 Governing Law. Except to the extent that TRLPA is mandatorily
applicable, this Merger Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (regardless of the laws that
might otherwise govern under applicable principles of conflicts of law) as to
all matters.
6.13 Expenses. Except as otherwise provided herein, Pioneer shall pay
all costs and expenses incurred in connection with this Merger Agreement and the
transactions contemplated hereby, whether or not the mergers are completed.
6.14 Liquidation. The Partnerships, Pioneer and Pioneer USA intend and
agree that the mergers shall be treated as a liquidation of the Partnerships
into Pioneer USA pursuant to Section 332 of the Internal Revenue Code of 1986,
as amended, and shall make all declarations and filings necessary to accomplish
such intent and liquidation.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Merger
Agreement as of the date first written above.
PIONEER NATURAL RESOURCES COMPANY
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxx
Executive Vice President, General Counsel
and Secretary
PIONEER NATURAL RESOURCES USA, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxx
Executive Vice President, General Counsel
and Secretary
PARTNERSHIPS:
Xxxxxx & Xxxxxxx Employees Producing Properties 87-A, Ltd.
Xxxxxx & Parsley Employees Producing Properties 87-B, Ltd.
P&P Employees Producing Properties 88-A, L.P.
P&P Employees 89-A Conv., L.P.
P&P Employees 89-B Conv., L.P.
P&P Employees Private 89, L.P.
P&P Employees 90-A Conv., L.P.
P&P Employees 90-B Conv., L.P.
P&P Employees 90-C Conv., L.P.
P&P Employees Private 90, L.P.
P&P Employees 90 Spraberry Private Development, L.P.
P&P Employees 91-A Conv., L.P.
P&P Employees 91-B Conv., L.P.
By: Pioneer Natural Resources USA, Inc., as the sole
general partner of each Partnership
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxx
Executive Vice President, General Counsel
and Secretary
By: Pioneer Natural Resources USA, Inc., as
attorney-in-fact for the limited partners
of each Partnership
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxx
Executive Vice President, General Counsel
and Secretary
EXHIBIT A
TO
AGREEMENT AND PLAN OF MERGER
Summary Table - Merger Value
This table contains the merger value assigned to (1) Pioneer USA's partnership
interests, whether general or limited, in each partnership, (2) each
partnership's limited partners, excluding Pioneer USA, and (3) each partnership
as a whole.
Merger Value
-----------------------------------------
Partnership Pioneer USA Limited Partners Total
----------- ---------------- --------
Xxxxxx & Parsley Employees Producing Properties 87-A, Ltd. $93,177 $76,236 $169,413
Xxxxxx & Xxxxxxx Employees Producing Properties 87-B, Ltd. 63,166 63,165 126,331
P&P Employees Producing Properties 88-A, L.P. 70,772 70,772 141,544
P&P Employees 89-A Conv., L.P. 40,631 185,099 225,730
P&P Employees 89-B Conv., L.P. 40,436 184,205 224,641
P&P Employees Private 89, L.P. 20,288 92,424 112,712
P&P Employees 90-A Conv., L.P. 26,683 121,557 148,240
P&P Employees 90-B Conv., L.P. 159,052 577,301 736,353
P&P Employees 90-C Conv., L.P. 80,129 206,044 286,173
P&P Employees Private 90, L.P. 29,378 143,431 172,809
P&P Employees 90 Spraberry Private Development, L.P. 14,316 69,895 84,211
P&P Employees 91-A Conv., L.P. 98,336 116,606 214,942
P&P Employees 91-B Conv., L.P. 111,073 131,710 242,783
New York Mercantile Exchange (NYMEX) Futures Prices
The following table shows the NYMEX futures price for oil and gas used
in the calculation of the merger value for each partnership:
Date Oil ($/Bbl) Gas ($/Mcf)
------------------- ----------- -----------
Oct.-Dec. 2000 30.37 4.67
2001 27.34 3.96
2002 24.46 3.43
2003 22.68 3.09
2004 21.59 2.97
2005 and thereafter 20.97 2.92
The merger value for each partnership was calculated using a 13.5%
discount rate.
A-1
