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EXHIBIT 10.27
AGREEMENT OF MERGER
This AGREEMENT OF MERGER (this "Agreement"), dated as of January 5,
1994, is entered into by and among MESA, Inc., a Texas corporation (the
"Company"), Mesa Operating limited Partnership, a Delaware limited partnership
("MOLP"), Mesa Midcontinent Limited Partnership, a Delaware limited partnership
("MMLP"), Mesa Holding Limited Partnership, a Delaware limited partnership
("MHLP"), Mesa Environmental Ventures Limited Partnership, a Delaware limited
partnership ("MEVLP"), Mesa Sub 1, Inc., a Delaware corporation ("Sub 1"), Mesa
Sub 2, Inc., a Delaware corporation ("Sub 2"), Mesa Sub 3, Inc., a Delaware
corporation ("Sub 3"), Mesa Sub 4, Inc., a Delaware corporation ("Sub 4"'),
Boone Pickens, Pickens Operating Co., a Texas corporation wholly owned by Mr.
Pickens ("POC"), and Mesa Environmental Co. a Texas corporation wholly owned by
Mr. Pickens ("MEC"), and sets forth, among other things, the terms and
provisions governing the merger of MOLP with and into Sub 1 (the "Sub 1
Merger"), the merger of MMLP with and into Sub 2 (the "Sub 2 Merger"), the
merger of MHLP with and into Sub 3 (the "Sub 3 Merger") and the merger of MEVLP
and MEC with and into Sub 4 (the "Sub 4 Merger" and, together with the Sub 1
Merger, the Sub 2 Merger and the Sub 3 Merger, the "Mergers").
RECITALS
WHEREAS, the Company desires to effect the Merger in order to convert
all of its subsidiary partnerships (other than Hugoton Capital Limited
Partnership, a Delaware limited partnership ("HCLP")) into subsidiary
corporations and simplify its organizational structure;
WHEREAS, Section 15.2 of the partnership agreements of each of MOLP,
MMLP, MHLP and MEVLP provides that such partnerships may merge or consolidate
with or into one or more limited partnerships or other business entities (as
defined) upon the affirmative vote of its general partner(s) and limited
partner (the term "General Partner" as used herein meaning POC and Mr.
Pickens, collectively, in the case of MOLP, MMLP and MHLP, and meaning MEC in
the case of MEVLP); and
WHEREAS, the Mergers and the concurrent transfer by Mr. Pickens to the
Company of the outstanding common stock of Pickens Hugoton Company, a Texas
corporation wholly owned by Mr. Pickens and the general partner of HCLP
("PHC"), will result in the conversion of the outstanding general partnership
interests in MOLP, MMLP, MHLP and MEVLP and the common stock of PHC held by the
Mr. Pickens and/or POC into the same number of shares of common stock, par
value $.01 per share ("Company Common Stock"), of the Company as Mr. Pickens
and POC would have received if they had elected to convert their general
partner interests in MOLP, MMLP and MHLP into
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Company Common Stock pursuant to the Conversion Agreement, dated as of December
31, 1991, by and between the Company, Mr. Pickens and POC; and,
NOW THEREFORE, in consideration of the mutual covenants, conditions
and agreements herein contained, the parties agree as follows:
ARTICLE I
THE TRANSACTION
Subject to the terms and conditions hereinafter set forth,
(i) the Company will transfer all of the units of its limited
partnership interest in (a) MOLP (the "MOLP LP Units") to Sub
1 in exchange for shares of the common stock, par value $.01
per share, of Sub 1, (b) MMLP (the "MMLP LP Units"), to Sub 2
in exchange for shares of the common stock, par value $.01 per
share, of Sub 2, (c) MHLP (the MHLP LP Units") to Sub 3 in
exchange for shares of the common stock, par value $.01 per
share, of Sub 3;
(ii) MHLP will transfer all of the units of its limited partnership
interest in MEVLP (the "MEVLP LP Units") to Sub 4 in exchange
for shares of the common stock, par value $.01 per share, of
Sub 4;
(iii) at the Effective Time (as defined in Section 8.1 hereof) and
pursuant to the Mergers (a) MOLP will merge with and into Sub
1, (b) MMLP will merge with and into Sub 2, (c) MHLP will
merge with and into Sub 3 and (d) MEVLP and MEC will merge
with and into Sub 4;
(iv) at the Effective time, Mr. Pickens will transfer all of the
outstanding common stock of PHC to the Company;
(v) at the Effective Time and pursuant to the Mergers and the
concurrent transfer of the outstanding common stock of PHC by
Mr. Pickens to the Company, each unit of the general
partnership interest in MOLP (a "MOLP GP Unit"), together with
one unit of the general partnership interest in MMLP (a "MMLP
GP Unit"), one unit of the general partnership interest in
MHLP (a "MHLP GP Unit"), and a proportionate interest in the
outstanding common stock of each PHC and MEC (a "PHC Interest"
and an "MEC Interest," respectively, and together with one
MOLP GP Unit, one MMLP GP Unit and one MHLP GP Unit, a
"Combined GP Unit"), now held by Mr. Pickens and/or POC will
be converted into one share of Company Common Stock; and
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(vi) all such Combined GP Units (other than the portion represented
by shares of PHC common stock, which will remain outstanding
and be held by the Company) will be canceled.
ARTICLE II
MERGER OF MOLP WITH AND INTO SUB 1
SECTION 2.1 Transfer of MOLP LP Units. Immediately prior to
the Effective Time, the Company shall transfer and contribute all the MOLP LP
Units owned by the Company to Sub 1 and Sub 1 shall issue to the Company in
exchange therefor all shares of Sub 1 common stock issued and outstanding at
such time.
SECTION 2.2 Surviving Corporation. In accordance with the
provisions of this Agreement, the Delaware General Corporation Law (the "DGCL")
and the Delaware Revised Uniform Limited Partnership Act (the "DRULPA"), at the
Effective Time, MOLP shall merge with and into Sub 1, Sub 1 shall be the
surviving corporation and shall continue its corporate existence under the laws
of the State of Delaware, and the separate existence of MOLP shall cease.
SECTION 2.3 Assets and Liabilities.
(a) At the Effective Time, all rights, title and
interests to all real estate and all other property owned by MOLP and all other
claims, goodwill, rights, entitlements, powers, privileges, immunities and
franchises of MOLP of any kind or character shall be vested in Sub 1 without
reversion or impairment, without further act or deed, and without any transfer
or assignment having occurred. From and after the Effective Time, Sub 1 shall
be liable and responsible for all liabilities and obligations of MOLP of any
kind or character, and any proceeding pending against MOLP may be continued as
if the Sub 1 Merger had not taken place, or Sub 1 may be substituted in place
of MOLP in any such proceeding.
(b) At the Effective Time, all rights, title and interests
to all real estate and other property owned by Sub 1 and all other claims,
goodwill, rights, entitlements, powers, privileges, immunities and franchises
of Sub 1 of any kind or character shall remain vested in Sub 1 and shall be
unaffected and unimpaired by the Sub 1 Merger. From and after the Effective
Time, Sub 1 shall continue to be liable and responsible for all of its
liabilities and obligations of any kind or character.
SECTION 2.4 Certificate of Incorporation. The Certificate of
Incorporation of Sub 1, as in effect immediately prior to the Effective Time,
shall thereafter continue in full force and effect as the Certificate of
Incorporation of Sub 1; provided, however, that the name of Sub 1 shall be
changed to "Mesa Operating Co." at the Effective Time.
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SECTION 2.5 Bylaws. The Bylaws of Sub 1, as in effect
immediately prior to the Effective Time, shall thereafter continue in full
force and effect as the Bylaws of Sub 1, until amended as provided by law.
SECTION 2.6 Directors and Officers. The directors and officers
of Sub 1 in office immediately prior to the Effective Time shall thereafter
continue to be the directors and officers of Sub 1, each to hold office in
accordance with the Certificate of Incorporation and Bylaws of Sub 1.
ARTICLE III
MERGER OF MMLP WITH AND INTO SUB 2
SECTION 3.1 Transfer of MMLP LP Units. Immediately prior to
the Effective Time, the Company shall transfer and contribute all the MMLP LP
Units owned by the Company to Sub 2 and Sub 2 shall issue to the Company in
exchange therefor all shares of Sub 2 common stock issued and outstanding at
such time.
SECTION 3.2 Surviving Corporation. In accordance with the
provisions of this Agreement, the DGCL and the DRULPA, at the Effective Time
MMLP shall merge with and into Sub 2, Sub 2 shall be the surviving corporation
and shall continue its corporate existence under the laws of the State of
Delaware, and the separate existence of MMLP shall cease.
SECTION 3.3 Assets and Liabilities.
(a) At the Effective Time, all rights, title and
interests to all real estate and all other property owned by MMLP and all other
claims, goodwill, rights, entitlements, powers, privileges, immunities and
franchises of MMLP of any kind or character shall be vested in Sub 2 without
reversion or impairment, without further act or deed, and without any transfer
or assignment having occurred. From and after the Effective Time, Sub 2 shall
be liable and responsible for all liabilities and obligations of MMLP of any
kind or character, and any proceeding pending against MMLP may be continued as
if the Sub 2 Merger had not taken place, or Sub 2 may be substituted in place
of MMLP in any such proceeding.
(b) At the Effective Time, all rights, title and
interests to all real estate and other property owned by Sub 2 and all other
claims, goodwill, rights, entitlements, powers, privileges, immunities and
franchises of Sub 2 of any kind or character shall remain vested in Sub 2 and
shall be unaffected and unimpaired by the Sub 2 Merger. From and after the
Effective Time, Sub 2 shall continue to be liable and responsible for all of
its liabilities and obligations of any kind or character.
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SECTION 3.4 Certificate of Incorporation. The Certificate of
Incorporation of Sub 2, as in effect immediately prior to the Effective Time,
shall thereafter continue in full force and effect as the Certificate of
Incorporation of Sub 2; provided, however, that the name of Sub 2 shall be
changed to "Mesa Midcontinent Co." at the Effective Time.
SECTION 3.5 Bylaws. The Bylaws of Sub 2, as in effect
immediately prior to the Effective Time shall thereafter continue in full force
and effect as the Bylaws of Sub 2, until amended as provided by law.
SECTION 3.6 Directors and Officers. The directors and officers
of Sub 2 in office immediately prior to the Effective Time shall thereafter
continue to be the directors and officers of Sub 2, each to hold office in
accordance with the Certificate of Incorporation and Bylaws of Sub 2.
ARTICLE IV
MERGER OF MHLP WITH AND INTO SUB 3
SECTION 4.1 Transfer of MHLP LP Units. Immediately prior to
the Effective Time, the Company shall transfer and contribute all the MHLP LP
Units owned by the Company to Sub 3 and Sub 3 shall issue to the Company in
exchange therefor all shares of Sub 3 common stock issued and outstanding at
such time.
SECTION 4.2 Surviving Corporation. In accordance with the
provisions of this Agreement, the DGCL and the DRULPA, at the Effective Time
and MHLP shall merge with and into Sub 3, Sub 3 shall be the surviving
corporation and shall continue its corporate existence under the laws of the
State of Delaware, and the separate existence of MHLP shall cease.
SECTION 4.3 Assets and Liabilities.
(a) At the Effective Time, all rights, title and
interests to all real estate and all other property owned by MHLP and all other
claims, goodwill, rights, entitlements, powers, privileges, immunities and
franchises of MHLP of any kind or character shall be vested in Sub 3 without
reversion or impairment, without further act or deed, and without any transfer
or assignment having occurred. From and after the Effective Time, Sub 3 shall
be liable and responsible for all liabilities and obligations of MHLP of any
kind or character, and any proceeding pending against MHLP may be continued as
if the Sub 3 Merger had not taken place, or Sub 3 may be substituted in place
of MHLP in any such proceeding.
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(b) At the Effective Time, all rights, title and
interests to all real estate and other property owned by Sub 3 and all other
claims, goodwill, rights, entitlements, powers, privileges, immunities and
franchises of Sub 3 of any kind or character shall remain vested in Sub 3 and
shall be unaffected and unimpaired by the Sub 3 Merger. From and after the
Effective Time, Sub 3 shall continue to be liable and responsible for all of
its liabilities and obligations of any kind or character.
SECTION 4.4 Certificate of Incorporation. The Certificate of
Incorporation of Sub 3, as in effect immediately prior to the Effective Time,
shall thereafter continue in full force and effect as the Certificate of
Incorporation of Sub 3; provided, however, that the name of Sub 3 shall be
changed to "Mesa Holding Co." at the Effective Time.
SECTION 4.5 Bylaws. The Bylaws of Sub 3, as in effect
immediately prior to the Effective Time, shall thereafter continue in full
force and effect as the Bylaws of Sub 3, until amended as provided by law.
SECTION 4.6 Directors and Officers. The directors and officers
of Sub 3 in office immediately prior to the Effective Time shall thereafter
continue to be the directors and officers of Sub 3, each to hold office in
accordance with the Certificate of Incorporation and Bylaws of Sub 3.
ARTICLE V
MERGER OF MEVLP AND MEC WITH AND INTO SUB 4
SECTION 5.1 Transfer of MEVLP LP Units. Immediately prior to
the Effective Time, MHLP shall transfer and contribute all the MEVLP LP Units
owned by the MHLP to Sub 4 and Sub 4 shall issue to MHLP in exchange therefor
all shares of Sub 4 common stock issued and outstanding at such time.
SECTION 5.2 Surviving Corporation. In accordance with the
provisions of this Agreement, the DGCL and the DRULPA, at the Effective Time
and MEVLP and MEC shall merge with and into Sub 4, Sub 4 shall be the surviving
corporation and shall continue its corporate existence under the laws of the
State of Delaware, and the separate existence of MEVLP and MEC shall cease.
SECTION 5.3 Assets and Liabilities.
(a) At the Effective Time, all rights, title and
interests to all real estate and all other property owned by each of MEVLP and
MEC and all other claims, goodwill rights, entitlements, powers, privileges,
immunities and franchises of each of MEVLP and MEC of any kind or character
shall be vested in Sub 4 without reversion or impairment, without further act
or deed, and without any transfer or assignment having occurred. From
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and after the Effective Time, Sub 4 shall be liable and responsible for all
liabilities and obligations of each of MEVLP and MEC of any kind or character,
and any proceeding pending against either of MEVLP and MEC may be continued as
if the Sub 4 Merger had not taken place, or Sub 4 may be substituted in place
of MEVLP or MEC, as applicable, in any such proceeding.
(b) At the Effective Time, all rights, title and
interests to all real estate and other property owned by Sub 4 and all other
claims, goodwill, rights, entitlements, powers, privileges, immunities and
franchises of Sub 4 of any kind or character shall remain vested in Sub 4 and
shall be unaffected and impaired by the Sub 4 Merger. From and after the
Effective Time, Sub 4 shall continue to be liable and responsible for all of
its liabilities and obligations of any kind or character.
SECTION 5.4 Certificate of Incorporation. The Certificate of
Incorporation of Sub 4, as in effect immediately prior to the Effective Time,
shall thereafter continue in full force and effect as the Certificate of
Incorporation of Sub 4; provided, however, that the name of Sub 4 shall be
changed to "Mesa Environmental Ventures Co." at the Effective Time.
SECTION 5.5 Bylaws. The Bylaws of Sub 4, as in effect
immediately prior to the Effective Time, shall thereafter continue in full
force and effect as the Bylaws of Sub 4, until amended as provided by law.
SECTION 5.6 Directors and Officers. The directors and officers
of Sub 4 in office immediately prior to the Effective Time shall thereafter
Continue to be the directors and officers of Sub 4, each to hold office in
accordance with the Certificate of Incorporation and Bylaws of Sub 4.
ARTICLE VI
CONVERSION OF COMBINED GP UNITS AND CANCELLATION OF LP UNITS
At the Effective Time and pursuant to the Mergers and the
concurrent transfer of the outstanding common stock of PHC by Mr. Pickens to
the Company (i) each Combined GP Unit outstanding shall be convened into one
share of Company Common Stock and (ii) each MOLP LP Unit, MMLP LP Unit, MHLP LP
Unit, MEVLP LP Unit and MEC Interest that is issued and outstanding immediately
prior to the Effective Time shall be canceled and cease to exist. The PHC
Interest, represented by the common stock of PHC to be transferred by Mr.
Pickens to the Company at the Effective Time shall remain outstanding. The
remaining portion of the Combined GP Units will be cancelled.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination. This Agreement may be terminated and
the Mergers and the transfer of shares of PHC by Mr. Pickens to the Company may
be abandoned by mutual consent of the Company, Mr. Pickens and POC at any time
prior to the filing of the certificates and articles of merger referred to in
Section 8.1 below with the Secretaries of State of the States of Delaware and
Texas, as applicable.
SECTION 7.2 Effect of Termination. In the event of termination
of this Agreement as provided in Section 7.1, written notice thereof will
promptly be given to the other parties, and this Agreement will forthwith
terminate without further action by any other party hereto. If this Agreement
is terminated as so provided, however, there will be no liabilities or
obligations hereunder on the part of any party hereto, except that nothing
herein will relieve any party hereto from liability for any breach of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Effective Time. The Mergers shall become effective
at such time (the "Effective Time") as shall be set forth in the certificates
of merger to be filed with respect to each of the Mergers with the Secretary of
State of the State of Delaware. The Effective Time to be set forth in such
certificates of merger shall be 6:00 p.m., Eastern Standard Time, on January 5,
1994.
SECTION 8.2 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, to the other party at 2600
Trammell Crow Center, 2001 Ross Avenue, Dallas, Texas 75201.
SECTION 8.3 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
SECTION 8.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (EXCEPT
TO THE EXTENT THE LAWS OF THE STATE OF TEXAS SHALL APPLY TO THE SUB 4 MERGER,
TO WHICH EXTENT THE LAWS OF THE STATE OF TEXAS SHALL GOVERN).
SECTION 8.5 Vote of Partners and Consent of Shareholders. The
signatures set forth below of the limited and general partners of each of MOLP,
MMLP, MHLP and
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MEVLP shall constitute the affirmative vote of such partners for all purposes
(including under applicable law and the partnership agreements of such
partnerships) with respect to the transactions referred to herein (including
(i) the transfers of MOLP LP Units, MMLP LP Units, MHLP LP Units and MEVLP LP
Units and (ii) the Mergers) as they relate to their respective partnership
interests. The signature set forth below of the Company shall constitute its
consent for all purposes (including under applicable law and the partnership
agreements of MOLP, MMLP and MHLP), as the sole shareholder of each of Sub 1,
Sub 2 and Sub 3, to the Sub 1 Merger, the Sub 2 Merger and the Sub 3 Merger,
respectively. The signature set forth below of MHLP shall constitute its
consent for all purposes (including under applicable law and the partnership
agreement of MEVLP), as the sole shareholder of Sub 4, to the Sub 4 Merger. The
signature set forth below of Mr. Pickens shall constitute his consent for all
purposes (including under applicable law and, the partnership agreement Of
MEVLP), as the sole shareholder of MEC, to the Sub 4 Merger.
SECTION 8.6 Consent to Transfer of Limited Partnership
Interest. The signatures of the General Partner of each of MOLP, MMLP, MHLP
and MEVLP set forth below shall constitute acknowledgement of the consent of
such General Partner to the transfer by the Company of its MOLP LP Units, MMLP
LP Units and MHLP LP Units to Sub 1, Sub 2 and Sub 3, respectively, and the
transfer by MHLP of its MEVLP LP Units to Sub 4, as applicable.
SECTION 8.7 Consent to Admission of Successor Limited Partner.
The signatures set forth below of (i) Sub 1, Sub 2, Sub 3 and Sub 4 shall
constitute evidence of the acceptance of each of Sub 1, Sub 2, Sub 3 and Sub 4
of all the terms and conditions of the partnership agreements of each of MOLP,
MMLP, MHLP and MEVLP, respectively, as required by Article XII of such
partnership agreements and (ii) the General Partner of each of MOLP, MMLP, MHLP
and MEVLP shall constitute the consent of such General Partner to the admission
of Sub 1, Sub 2, Sub 3 and Sub 4 as successor limited partners to MOLP, MMLP,
MHLP and MEVLP, respectively.
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IN WITNESS WHEREOF, undersigned have caused this Agreement to
be executed as of the date first above written.
MESA INC.
/s/ PAUL W. CAIN
Paul W. Cain
President
MESA OPERATING LIMITED PARTNERSHIP
By General Partners:
/s/ BOONE PICKENS
Boone Pickens
Pickens Operating Co.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
By Limited Partner:
MESA Inc.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
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MESA MIDCONTINENT LIMITED
PARTNERSHIP
By General Partners:
/s/ BOONE PICKENS
Boone Pickens
Pickens Operating Co.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
By Limited Partner:
MESA Inc.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
MESA HOLDING LIMITED
PARTNERSHIP
By General Partners:
/s/ BOONE PICKENS
Boone Pickens
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Pickens Operating Co.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
By Limited Partner:
MESA Inc.
/s/ PAUL W. CAIN
Paul W. Cain
President
MESA SUB 1, INC
By: /s/ PAUL W. CAIN
Paul W. Cain
President
MESA SUB 2, INC.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
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MESA SUB 3, INC.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
PICKENS OPERATING CO.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
/s/ BOONE PICKENS
Boone Pickens
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MESA ENVIRONMENTAL VENTURES
LIMITED PARTNERSHIP
By General Partner:
Pickens Hugoton Company
By: /s/ PAUL W. CAIN
Paul W. Cain
President
By Limited Partner:
Mesa Holding Limited Partnership
By General Partners:
Pickens Operating Co.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
/s/ BOONE PICKENS
Boone Pickens
MESA ENVIRONMENTAL CO.
By: /s/ PAUL W. CAIN
Paul W. Cain
President
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MESA SUB 4, INC.
By: /s/ PAUL W. CAIN
Paul W. Cain
President