1
EXHIBIT 2.1
===============================================================================
AGREEMENT AND PLAN OF MERGER
between
Future Petroleum Corporation
(a Utah corporation),
and
FPT Corporation
(a Texas corporation),
April 6, 1999
===============================================================================
2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), is made and
entered into as of this 6th day of April, 1999, between Future Petroleum
Corporation, a Utah corporation (the "Company") and FPT Corporation, a Texas
corporation and a wholly owned subsidiary of the Company ("Merger-Sub").
RECITALS
WHEREAS, the respective Boards of Directors of the Company and
Merger-Sub have determined that, subject to the terms and conditions
hereinafter set forth, it is advisable and to their respective stockholders'
mutual advantage and benefit to adopt a plan, whereby the Company will merge
with and into Merger-Sub (the "Merger") pursuant to this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements, and conditions herein
contained, the parties hereto agree as follows:
ARTICLE I. THE MERGER; CLOSING; EFFECTIVE TIME
Section 1.1 THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.3), the Company shall
be merged with and into Merger-Sub and the separate corporate existence of the
Company shall thereupon cease. Merger-Sub shall be the surviving corporation in
the Merger (sometimes hereinafter referred to as the "Surviving Corporation")
and shall continue to be governed by the laws of the State of Texas, and the
separate corporate existence of Merger-Sub, with all of its rights, privileges,
immunities, and franchises shall continue unaffected by the Merger. The Merger
shall have the effects specified in the Utah Revised Business Corporations Act
("Utah Act") and in the Texas Business Corporations Act ("TBCA") with respect
to the Company and Merger-Sub.
Section 1.2 EFFECTIVE TIME. The Company and Merger-Sub will cause
articles of merger ("Articles of Merger"), attached hereto as Exhibit A, to be
signed and then filed with the Utah Division of Corporations and Commercial
Code and the Secretary of State of Texas as provided in the Utah Act and TBCA.
The Merger shall become effective upon the later of the filing of Articles of
Merger with Utah Division of Corporations and Commercial Code pursuant to
Section 16-10a-1105 of the Utah Act and with the Secretary of State of Texas
pursuant to Article 5.04 of the TBCA or at such other time as is specified in
the Articles of Merger, and such time is hereinafter referred to as the
"Effective Time."
Section 1.3 SUBSEQUENT ACTIONS. Upon the Merger becoming effective,
all the property, rights, privileges, franchises, patents, trademarks,
licenses, registrations and other assets of every kind and description of the
Company shall be transferred to, vested in and devolve upon the Surviving
Corporation without further act or deed and all property, rights and every
other interest of the Surviving Corporation and the Company shall be as
effectively the property of the Surviving Corporation as they were of the
Surviving Corporation and the Company, respectively. If, at any time after the
Effective Time, the Surviving Corporation shall consider or be advised that any
deeds, bills of sale, assignments, assurances, or any other actions or things
are necessary or desirable to vest, perfect, or confirm of record or otherwise
in the Surviving Corporation its right, title, or interest in, to, or under any
of the rights, properties, or assets of the Company acquired or to be acquired
by the Surviving Corporation as a result of or in connection with the
3
Merger, or otherwise to carry out this Agreement, the officers and directors of
the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of the Company or otherwise, all such deeds, bills of sale,
assignments, and assurances, and to take and do, in the name and on behalf of
the Company or otherwise, all such other actions and things as may be necessary
or desirable to vest, perfect, or confirm any and all right, title, and
interest in, to, and under such rights, properties, or assets in the Surviving
Corporation or otherwise to carry out this Agreement.
ARTICLE II. ARTICLES OF INCORPORATION AND
BY-LAWS OF THE SURVIVING CORPORATION
Section 2.1 THE ARTICLES OF INCORPORATION.
(a) Merger-Sub's Articles of Incorporation. The Articles of
Incorporation of Merger-Sub, attached hereto as Exhibit B, in effect at the
Effective Time shall be the Articles of Incorporation of the Surviving
Corporation, until duly amended in accordance with the terms thereof and the
TBCA.
(b) Amendments to Articles of Incorporation of Merger-Sub. The
Articles of Merger shall amend Article One of the Articles of Incorporation of
Merger-Sub to change Merger-Sub's name to "Bargo Energy Company."
Section 2.2 THE BY-LAWS. The By-Laws of Merger-Sub, attached hereto as
Exhibit C, in effect at the Effective Time shall be the By-Laws of the
Surviving Corporation, until duly amended in accordance with the terms thereof
and the TBCA.
ARTICLE III. OFFICERS AND DIRECTORS
OF THE SURVIVING CORPORATION
Section 3.1 OFFICERS AND DIRECTORS. The directors of Merger-Sub at the
Effective Time, from and after the Effective Time, shall be the directors of
the Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation, or removal
in accordance with the Surviving Corporation's Articles of Incorporation and
By-Laws. The officers of Merger-Sub at the Effective Time shall, from and after
the Effective Time, be the officers of the Surviving Corporation until their
successors have been duly appointed or until their earlier death, resignation
or removal in accordance with the Surviving Corporation's Bylaws.
ARTICLE IV. CONVERSION OR CANCELLATION
OF SHARES IN THE MERGER
Section 4.1 CONVERSION OR CANCELLATION OF SHARES.
(a) Conversion of Shares of the Company. At the Effective Time, each
share of common stock, $.01 par value, of the Company ("Company Common Stock")
issued and outstanding immediately prior to the Effective Time other than
shares as to which appraisal rights shall have been perfected and not withdrawn
or otherwise forfeited under the Utah Act, by virtue of the Merger and without
any action on the part of the holder thereof, shall be converted into the right
to receive one share of common stock, $.01 par value per share, of Merger-Sub
("New Common Stock") and each share of preferred stock of the Company ("Company
Preferred Stock") issued and outstanding immediately prior to the Effective
Time (the Company Common Stock and Company Preferred Stock issued and
outstanding immediately prior to the Effective Time are herein referred to, as
the context requires, as the "Canceled Shares"), other than shares as to which
appraisal rights
2
4
shall have been perfected and not withdrawn or otherwise forfeited under the
Utah Act, by virtue of the Merger and without any action on the part of the
holder thereof, shall be converted into the right to receive one share of
preferred stock, $.01 par value per share, of Merger-Sub ("New Preferred
Stock") (the New Common Stock and New Preferred Stock set forth in this
subsection are herein referred to, as the context requires, as the "Merger
Consideration"). All such Canceled Shares, by virtue of the Merger and without
any action on the part of the holders thereof, shall be canceled and cease to
be issued and outstanding. All certificates of such Canceled Shares, by virtue
of the Merger and without any action on the part of the holders thereof, shall
be deemed to represent a number of shares of either New Common Stock or New
Preferred Stock in an amount equal to the number of shares of Company Common
Stock or Company Preferred Stock represented by the certificate immediately
prior to the Effective Time, and each holder of a certificate representing any
such Canceled Shares shall thereafter have all of the rights and privileges of
a holder of New Common Stock or New Preferred Stock and cease to have any
rights with respect to such Canceled Shares.
(b) Cancellation of Shares of Merger-Sub. At the Effective time, each
share of common stock of Merger-Sub issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any action on the
part of the holder thereof, be canceled and case to be issued and outstanding.
Section 4.2 TRANSFER OF SHARES AFTER THE EFFECTIVE TIME. Transfers of
Canceled Shares shall be made on the stock transfer books of the Surviving
Corporation at or after the Effective Time as if such certificates represented
shares of New Common Stock or New Preferred Stock. However, upon presenting a
certificate representing Canceled Shares to Merger-Sub's transfer agent, such
certificate shall be canceled and a new certificate representing the number of
shares of New Common Stock or New Preferred Stock previously represented by the
certificate for the Canceled Shares shall be issued.
Section 4.3 DISSENTING STOCKHOLDERS. Each share of Company Common
Stock or Company Preferred Stock with respect to which the holder thereof is
entitled to an appraisal pursuant to Part 13 of the Utah Act ("Dissenting
Shares") shall be converted into the right to receive such consideration as may
be determined to be due to such holder pursuant to Sections 16-10a-1325 and
16-10a-1330 of the Utah Act unless such holder shall have effectively withdrawn
or forfeited such right to appraisal, at which time such Company Common Stock
or Company Preferred Stock shall be converted into and represent a right to
receive the Merger Consideration in respect thereof in accordance with Section
4.1 hereof.
ARTICLE V. CONDITIONS TO THE CLOSING
Section 5.1 STOCKHOLDER APPROVAL. The consummation of the Merger is
subject to the approval, at or prior to the Effective Time, of the holders of
at least a majority of the outstanding voting power of the Company and the sole
stockholder of Merger-Sub in accordance with applicable law and the governing
documents of the Company and Merger-Sub.
ARTICLE VI. TERMINATION
Section 6.1 TERMINATION. Notwithstanding anything herein or elsewhere
to the contrary, this Agreement may be terminated by the Company at any time
prior to the Effective Time, regardless of whether this Agreement has been
approved by the stockholders of the Company.
3
5
ARTICLE VII. MISCELLANEOUS AND GENERAL
Section 7.1 HEADINGS. The Section headings herein are for convenience
of reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
Section 7.2 ENTIRE AGREEMENT. This Agreement (including exhibits
hereto) embodies the entire agreement and understanding of the parties with
respect to the transactions contemplated hereby and supersedes all prior
written or oral commitments, arrangements or understandings with respect
thereto. There are no restrictions, agreements, promises, warranties, covenants
or undertakings with respect to the transactions contemplated hereby other than
those expressly set forth herein or therein.
Section 7.3 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and each of which shall be deemed an original.
Section 7.4 SEVERABILITY. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provisions of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
Section 7.5 CONSTRUCTION. Whenever the context requires, the gender of
all words used herein shall include the masculine, feminine and neuter, and the
number of all words shall include the singular and plural.
Section 7.6 REFERENCES. Unless otherwise specified, references in this
Agreement to "Sections", "Subsections" or Articles" refer to the sections,
subsections or articles in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
FPT CORPORATION,
a Texas corporation
By: /s/ Tim J. Goff
-------------------------------
Name: Tim J. Goff
Title: President
FUTURE PETROLEUM CORPORATION,
a Utah corporation
By: /s/ Tim J. Goff
-------------------------------
Name: Tim J. Goff
Title: President
4
6
Exhibit A-1
ARTICLES OF MERGER
OF
FUTURE PETROLEUM CORPORATION
WITH AND INTO
FPT CORPORATION
Pursuant to the provisions of Article 5.04 of the Texas Business
Corporation Act, the undersigned corporations adopt the following Articles of
Merger for the purpose of merging Future Petroleum Corporation into FPT
Corporation and certify as follows:
1. The name and state of incorporation of each corporation that is a
party to the merger is:
NAME STATE
Future Petroleum Corporation Utah
FPT Corporation Texas
2. The surviving corporation of the merger is FPT Corporation.
3. A Plan of Merger has been approved by the directors and shareholders
of each such corporation.
4. Article One of the Articles of Incorporation of the surviving
corporation shall be amended to change the name of the surviving
corporation to Bargo Energy Company as follows:
"The name of the Corporation is Bargo Energy Company."
5. An executed Plan of Merger is on file at the principal place of
business of the surviving corporation, which place of business is
located at 700 Louisiana, Suite 3700, Houston, Texas 77002.
6. A copy of the Plan of Merger will be furnished by the surviving
corporation on written request and without cost to any shareholder of
each corporation that is a party to the merger.
7. As to FPT Corporation, the Texas corporation, the total number of
shares outstanding, voted for and against the Plan of Merger is as set
forth below. There were no classes of shares entitled to vote thereon
separately as a class.
TOTAL TOTAL TOTAL VOTED
NAME OF CORPORATION SHARES VOTED FOR AGAINST
FPT Corporation 1 1 0
8. As to Future Petroleum Corporation, the Utah corporation, the plan of
merger was duly authorized and approved by all action required by the
laws of the State of Utah, the state of incorporation, and by its
constituent documents. The total
7
number of shares outstanding, voted for and against the Plan of Merger
is as set forth below. There were no classes of shares entitled to
vote thereon separately as a class.
TOTAL TOTAL TOTAL VOTED
NAME OF CORPORATION SHARES VOTED FOR AGAINST
Future Petroleum Corporation 48,320,066 45,565,562 0
9. The surviving corporation will be responsible for the payment of all
fees and franchise taxes and will be obligated to pay such fees and
franchise taxes if the same are not timely paid.
10. The merger will become effective upon the filing of these Articles of
Merger.
Date: April 26, 1999
FUTURE PETROLEUM CORPORATION
By: /s/ Tim J. Goff
-------------------------------
Name: Tim J. Goff
-------------------------
Title: President
-------------------------
FPT CORPORATION
By: /s/ Tim J. Goff
-------------------------------
Name: Tim J. Goff
-------------------------
Title: President
-------------------------
-2-
8
Exhibit A-2
ARTICLES OF MERGER
OF
FUTURE PETROLEUM CORPORATION
WITH AND INTO
FPT CORPORATION
Pursuant to the provisions of Section 16-10a-1107 of the Utah Revised
Business Corporation Act, the undersigned corporations adopt the following
Articles of Merger for the purpose of merging Future Petroleum Corporation into
FPT Corporation and certify as follows:
1. The name and state of incorporation of each corporation that is a
party to the merger is:
NAME STATE
Future Petroleum Corporation Utah
FPT Corporation Texas
2. The surviving corporation of the merger is FPT Corporation.
3. A Plan of Merger, attached hereto as Exhibit A, has been approved by
the directors and shareholders of each such corporation.
4. The principal place of business of the surviving corporation is
located at 700 Louisiana, Suite 3700, Houston, Texas 77002.
5. As to FPT Corporation, the Texas corporation, the merger is permitted
by and the Plan of Merger was duly authorized and approved by all
action required by the laws of the State of Texas, the state of
incorporation, and by its constituent documents. The total number of
shares outstanding and entitled to vote, voted for and against the
Plan of Merger is as set forth below. There were no classes of shares
entitled to vote thereon separately as a class.
TOTAL TOTAL TOTAL VOTED
NAME OF CORPORATION SHARES VOTED FOR AGAINST
FPT Corporation 1 1 0
6. As to Future Petroleum Corporation, the Utah corporation, the total
number of shares outstanding and entitled to vote, voted for and
against the Plan of Merger is as set forth below. There were no voting
groups entitled to vote thereon separately as a voting group.
TOTAL TOTAL TOTAL VOTED
NAME OF CORPORATION SHARES VOTED FOR AGAINST
Future Petroleum Corporation 48,320,066 45,565,562 0
9
7. The merger will become effective upon the filing of these Articles of
Merger.
Date: April 26, 1999
FUTURE PETROLEUM CORPORATION
By: /s/ Tim J. Goff
-----------------------------
Name: Tim J. Goff
-----------------------
Title: President
-----------------------
FPT CORPORATION
By: /s/ Tim J. Goff
-----------------------------
Name: Tim J. Goff
-----------------------
Title: President
-----------------------