AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT NO. 2
This AMENDMENT NO. 2, dated as of November 3, 2009 (this “Amendment”), to the
Agreement and Plan of Merger, dated as of June 1, 2009, as amended by that certain Amendment No. 1,
dated as of October 26, 2009 (the “Merger Agreement”), is entered into among HH GP Holding,
LLC, an Oklahoma limited liability company (“Parent”), HPGP MergerCo, LLC, a Delaware
limited liability company and a subsidiary of Parent (“Merger Sub” and, together with
Parent, the “Parent Parties”), Xxxxxx Partners GP Holdings, LLC, a Delaware limited
liability company and the general partner of Holdings (“Holdings GP”), and Xxxxxx Holdings
GP, LP, a Delaware limited partnership (“Holdings” and, together with Holdings GP, the
“Holdings Parties”).
W I T N E S S E T H :
WHEREAS, the parties hereto are parties to the Merger Agreement, pursuant to which, upon the
terms and subject to the conditions set forth therein, the parties intend to effect the Merger
whereby Merger Sub is to be merged with and into Holdings, with Holdings surviving that merger; and
WHEREAS, the parties hereto wish to amend the Merger Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements
contained herein, and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree that, effective as of the date of
this Amendment, the Merger Agreement shall be amended as follows:
ARTICLE I
DEFINITIONS; REFERENCES
Section 1.1 Definitions; References. Unless otherwise specifically defined herein, each
capitalized term used but not defined herein shall have the meaning assigned to such term in the
Merger Agreement. On and after the date hereof, each reference in the Merger Agreement to “this
Agreement,” “herein,” “hereunder” or words of similar import shall mean and be a reference to the
Merger Agreement as amended by this Amendment. Each reference herein to “the date of this
Amendment” shall refer to the date set forth above and, except as otherwise expressly provided in
this Amendment, each reference in the Merger Agreement to the “date of this Agreement” or “date
hereof” or similar references shall refer to June 1, 2009.
ARTICLE II
AMENDMENT
Section 2.1 Amendment to Section 2.1. Section 2.1(a) of the Merger Agreement is
hereby amended by deleting “$2.40” and replacing such amount with “$3.20”.
Section 2.2 Amendment to Section 3.14. Section 3.14 of the Merger Agreement is hereby
amended and restated in its entirety as follows: “The Conflicts Committee has received the written
opinion of Barclays Capital, Inc., dated as of November 3, 2009, to the effect that, as of November
3, 2009, the Merger Consideration is fair to the holders of Common Units (excluding Common Units
owned by Xx. Xxxx, his Affiliates (including Continental Gas) and the Trusts) from a financial
point of view.”
Section 2.3 Amendment to Section 4.4. Section 4.4 of the Merger Agreement is hereby
amended by (a) adding the words “as amended as of the date of Amendment No. 2 to this Agreement”
after the words “equity commitment letters” and (b) deleting the words “date hereof” in the last
sentence of Section 4.4 and replacing them with the words “date of Amendment No. 2 to this
Agreement”.
Section 2.4 Amendment to Section 7.1. Section 7.1(b)(i) of the Merger Agreement is
hereby amended by deleting the words “November 6, 2009” and replacing them with the words “December
11, 2009”.
Section 2.5 Amendment to Section 7.2(a). Section 7.2(a) of the Merger Agreement is
hereby amended by deleting “$800,000” and replacing such amount with “$1,067,000”.
Section 2.6 Section 4.4 of the Parent Disclosure Schedule. Section 4.4 of the Parent
Disclosure Schedule is hereby amended to include the letter attached as Annex A to this Amendment.
ARTICLE III
GENERAL PROVISIONS
Section 3.1 Effect on the Merger Agreement. The Merger Agreement shall remain in full
force and effect and, as amended by this Amendment, is hereby ratified and affirmed in all
respects.
Section 3.2 Counterparts; Effectiveness. This Amendment may be executed in two or
more counterparts (including by facsimile), each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument, and shall become
effective when one or more counterparts have been signed by each of the parties and delivered (by
telecopy or otherwise) to the other parties.
Section 3.3 Governing Law. This Amendment, and all claims or causes of action
(whether at law, in contract or in tort) that may be based upon, arise out of or relate to this
Amendment or the negotiation, execution or performance hereof, shall be governed by and
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construed in accordance with the laws of the State of Delaware, without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of Delaware.
Section 3.4 Headings. Headings of the Articles and Sections of this Amendment are for
the convenience of the parties only and shall be given no substantive or interpretative effect
whatsoever.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered
as of the date first written above.
| HH GP HOLDING, LLC | ||||||
| By: | /s/ Xxxxxx Xxxx | |||||
| President | ||||||
| HPGP MERGERCO, LLC | ||||||
| By: | /s/ Xxxxxx Xxxx
|
|||||
| Xxxxxx Xxxx | ||||||
| President | ||||||
| XXXXXX PARTNERS GP HOLDINGS, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Chief Executive Officer and President | ||||||
| XXXXXX HOLDINGS GP, LP | ||||||
| By: | Xxxxxx Partners GP Holdings, LLC, | |||||
| its General Partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Chief Executive Officer and President | ||||||
