Exhibit (d)(ii)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of April 3,
2003, by and among ▇▇▇▇▇▇ Limited Partnership, a Delaware limited
partnership ("▇▇▇▇▇▇"), Castle Creek Partners, L.P., a Delaware limited
partnership ("Castle Creek"), BCLP GP, Inc., a Delaware corporation and
general partner of ▇▇▇▇▇▇ ("BCLP GP"), and HenleyCo, Inc. ("HenleyCo"), a
Delaware corporation. ▇▇▇▇▇▇ and HenleyCo are sometimes referred to herein
individually as a "Constituent Entity" and collectively as the "Constituent
Entities."
W I T N E S S E T H:
WHEREAS, the boards of directors of HenleyCo and BCLP ▇▇ ▇▇▇▇ it
advisable, fair to and in the best interests of each of the Constituent
Entities and their equity holders that HenleyCo be merged with and into
▇▇▇▇▇▇, with ▇▇▇▇▇▇ surviving (hereinafter, in such capacity, sometimes
referred to as the "Surviving Entity"), as permitted by Section 263 of the
Delaware General Corporation Law ("DGCL") and Section 17-211 of the
Delaware Revised Uniform Limited Partnership Act ("DRULPA") on the terms
and conditions set forth in this Agreement (the "Merger");
WHEREAS, each of the boards of directors of HenleyCo, BCLP GP and the
general partner of Castle Creek has approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the stockholders of HenleyCo have approved this Agreement
and the transactions contemplated hereby, and approval of the limited
partners of ▇▇▇▇▇▇ is not required.
NOW THEREFORE, the parties hereto have agreed as follows:
ARTICLE I
PLAN OF MERGER
1.01. Plan Adopted. A plan of merger of each of the Constituent
Entities pursuant to the provisions of Section 263(c) of the DGCL and
Section 17-211(c) of the DRULPA is adopted as follows:
(a) The Merger. At the Effective Time, as hereinafter
defined, HenleyCo shall be merged with and into ▇▇▇▇▇▇.
(b) Surviving Entity. The Surviving Entity in the Merger
shall be ▇▇▇▇▇▇ and the name of Surviving Entity shall be ▇▇▇▇▇▇ Limited
Partnership.
(c) Effects of the Merger. At the Effective Time, the
separate existence of HenleyCo shall cease, and Surviving Entity shall
succeed, without other transfer, to all the rights and property of HenleyCo
and shall be subject to all the debts and liabilities of HenleyCo as
provided in Section 263 of the DGCL and Section 17-211 of the DRULPA.
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(d) Conversion of HenleyCo Shares. At the Effective Time the
shares of common stock of HenleyCo that are issued and outstanding
immediately prior to the Effective Time (the "Shares") shall be
automatically converted by virtue of the Merger, and without any action on
the part of the holder thereof, as follows:
(i) the Shares held by Castle Creek (which represent
99% of the outstanding Shares) shall be converted
into a limited partnership interest of ▇▇▇▇▇▇
that shall represent 99% of the outstanding
equity of ▇▇▇▇▇▇; and
(ii) the Shares held by BCLP GP (which represent 1% of
the outstanding Shares) shall be converted into a
general partnership interest of ▇▇▇▇▇▇ that shall
represent 1% of the outstanding equity of ▇▇▇▇▇▇.
(e) Conversion of ▇▇▇▇▇▇ Interests. At the Effective Time:
(i) Each unit representing limited partnership
interests of ▇▇▇▇▇▇ (a "Unit") that is issued and outstanding immediately
prior to the Effective Time, other than Units held by Castle Creek or Units
held in ▇▇▇▇▇▇'▇ treasury (the "Public Units") shall be automatically
converted by virtue of the Merger, and without any action on the part of
the holder thereof, into the nontransferable right to receive the Merger
Consideration as hereinafter defined, to be paid following the surrender of
any such Units for payment as set forth in Section 1.02.
(ii) Each Unit held by Castle Creek immediately prior to
the Effective Time shall be canceled in the Merger and shall cease to exist
as a result thereof and shall not be converted into or entitled to receive
the Merger Consideration or any other consideration.
(iii) BCLP GP's general partnership interest in ▇▇▇▇▇▇
shall be canceled in the Merger and shall cease to exist as a result
thereof and shall not be converted into or entitled to receive the Merger
Consideration or any other consideration.
(iv) Each Unit held in the treasury of ▇▇▇▇▇▇
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of ▇▇▇▇▇▇, be canceled, retired and cease to
exist and no payment shall be made with respect thereto.
(f) Merger Consideration. The Merger Consideration in
respect of each former Public Unit shall consist of (A) an initial payment
of $27.00 in cash, without interest thereon (the "Initial Merger
Consideration"), plus (B) one or more possible additional cash payments
(the "Residual Consideration"), without interest thereon, of the
Proportionate Share (as hereinafter defined) of the Remaining Residual
Consideration Assets (as hereinafter defined), if any.
(i) Proportionate Share. The Proportionate Share in
respect of each former Public Unit shall be a fraction equal to (A) 0.99
(reflecting the 99% aggregate pre-Merger equity ownership of Unitholders in
▇▇▇▇▇▇) multiplied by (B) the quotient obtained when 1.0 is divided by
2,703,664 (the total number of Units outstanding (and not held in treasury)
at the time of the Merger).
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(ii) Remaining Residual Consideration Assets.
(A) The Remaining Residual Consideration Assets
shall consist of the Residual Consideration Assets (as hereinafter
defined), if any, that remain after payment of, or provision for, taxes,
expenses, liabilities, claims and contingencies that relate to or arise out
of (x) ▇▇▇▇▇▇'▇ pre-Merger operations, (y) this Agreement and the
transactions contemplated by this Agreement, including the Merger, or (z)
the Residual Consideration Assets.
(B) The Residual Consideration Assets shall
consist of all of the assets of ▇▇▇▇▇▇ after the Merger (and earnings
thereon) except for (I) an amount equal to the aggregate Initial Merger
Consideration, which shall be paid to holders of Public Units in exchange
for Certificates (as hereinafter defined) as set forth in this Agreement,
(II) an amount equal to $27.00 for each Unit held by Castle Creek
immediately before the Merger (or approximately $18,292,500) and earnings
thereon, and (III) an amount representing BCLP GP's one percent general
partnership interest in ▇▇▇▇▇▇ with respect to the Initial Merger
Consideration (or approximately $737,362) or earnings thereon.
(iii) Rounding. Residual Consideration calculations
shall be rounded to the nearest cent.
(iv) Example of Residual Consideration Calculation. By
way of example, if the Remaining Residual Consideration Assets total $1.0
million, the Residual Consideration in respect of each former Public Unit
will be approximately $0.36616976, calculated as follows:
0.99 multiplied by (1.0 divided by 2,703,664) multiplied by $1,000,000
which equals
approximately $0.36616976 per Public Unit formerly held
Accordingly, as illustrative examples assuming Remaining Residual
Consideration Assets of $1.0 million, a former holder of 1,000 Public Units
would receive $366.17 in Residual Consideration, and a former holder of 1
Public Unit would receive $0.37 in Residual Consideration. The actual
amount of Remaining Residual Consideration Assets may not be $1.0 million.
(v) Payment of Residual Consideration. The timing of
the payment of the Residual Consideration, if any, shall be in the
discretion of BCLP GP. Residual Consideration shall not be paid to any
holder who has not previously surrendered its Certificates in accordance
with Section 1.02 hereof.
(g) No Appraisal Rights. Unitholders shall not be entitled
to appraisal rights.
(h) Withholding Tax. The right of any former holder of a
Public Unit to receive Merger Consideration shall be subject to and reduced
by the amount of any required tax withholding obligation.
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1.02. Exchange of Certificates.
(a) Paying Agent. Before the Effective Time, ▇▇▇▇▇▇ shall
designate a paying agent in the Merger (the "Paying Agent"). ▇▇▇▇▇▇ shall
deposit with the Paying Agent in separate trust for holders of the
Certificates (as hereinafter defined) immediately available funds in an
amount sufficient for the payment of the aggregate Initial Merger
Consideration upon surrender of Certificates representing Public Units
converted pursuant to Section 1.01(e) hereof (it being understood that any
and all interest earned on funds made available to the Paying Agent
pursuant to this Agreement shall be turned over to Surviving Entity).
(b) Exchange Procedure.
(i) After the Effective Time, Surviving Entity shall
cause to be mailed to each holder of record of a certificate or
certificates that immediately prior to the Effective Time represented
Public Units (the "Certificates"), (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the
Paying Agent and shall be in a form and have other such provisions as
Surviving Entity may reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancellation to the
Paying Agent or to such other agent or agents as may be appointed by
Surviving Entity, together with such letter of transmittal, duly executed,
and such other documents as may reasonably be required by the Paying Agent,
the holder of such Certificate shall be entitled to receive in exchange
therefor, and the Paying Agent shall pay pursuant to instructions given by
Surviving Entity, the Initial Merger Consideration for each Public Unit
formerly evidenced by such Certificate. All Certificates surrendered for
payment hereunder shall thereupon be canceled. Until surrendered as
contemplated by this Section 1.02(b), each Certificate shall be deemed at
any time after the Effective Time to represent only the nontransferable
right to receive upon such surrender the Merger Consideration into which the
Public Units theretofore represented by such Certificate shall have been
converted pursuant to Section 1.01(e) hereof. No interest will be paid or
will accrue on the cash payable upon the surrender of any Certificate.
(ii) Upon the determination of BCLP GP that Residual
Consideration is to be paid to former holders of Public Units, Surviving
Entity shall make arrangements to pay Residual Merger Consideration to
holders whose Certificates formerly evidencing Public Units previously were
surrendered pursuant to Section 1.20(b) (it being understood that any and
all interest earned on Residual Consideration funds after such arrangements
are made shall be turned over to Surviving Entity).
(c) Record Date; Unit Transfer Books. BCLP GP shall set a
record date with respect to the Merger and shall instruct its transfer agent
to close the transfer books of ▇▇▇▇▇▇ at the close of business on such
record date; thereafter, there shall be no further registration of transfers
of Units. If, after the Effective Time, Certificates are presented to
Surviving Entity or the Paying Agent for any reason, they shall be canceled
and shall be exchanged for Merger Consideration upon receipt of applicable
documentation and otherwise as provided in this Article I. Merger
Consideration paid upon the surrender of Certificates in accordance with terms
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of this Article I shall be deemed to have been paid in full satisfaction of
all rights pertaining to the Units theretofore represented by such
Certificates.
(d) No Further Ownership Rights in ▇▇▇▇▇▇; No Transfer or
Assignment. At the Effective Time, each Public Unit shall be converted
into the nontransferable right to receive Merger Consideration as provided
in Section 1.01(e). Each holder of Public Units shall, at the Effective
Time, cease to have any rights with respect to such Public Units, except
the right to receive Merger Consideration. Merger Consideration paid
pursuant to Section 1.01(f) shall be deemed to have been issued in full
satisfaction of all rights pertaining to the Units converted in the Merger
in accordance with Section 1.01(e). The right to receive Merger
Consideration pursuant to this Agreement may not be transferred or
assigned.
(e) Return of Merger Consideration Funds. Any funds made
available to the Paying Agent for payment as Merger Consideration that
remain undistributed on the one-year anniversary of the Effective Time
shall be delivered to ▇▇▇▇▇▇, upon demand, and any former holder of Public
Units shall thereafter look only to ▇▇▇▇▇▇ for payment of their Merger
Consideration.
(f) No Liability; No Escheat of Remaining Funds. Neither
▇▇▇▇▇▇, HenleyCo, nor the Paying Agent will be liable to any person in
respect of any cash delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law. If any Certificates
have not been surrendered on or before the three-year anniversary of the
Effective Time (or immediately before such earlier date on which any
payment pursuant to this Agreement would otherwise escheat to or become the
property of any government entity pursuant to any applicable abandoned
property, escheat or similar law), the Merger Consideration in respect of
such Certificate will, unless otherwise provided by applicable law, become
the property of the Surviving Entity free and clear of all claims or
interest of any person previously entitled thereto.
1.03. Effective Time. The effective time and date of the Merger,
herein referred to as the "Effective Time," shall be the time at which an
appropriate Certificate of Merger relating to the Merger is filed in the
office of the Secretary of State of the State of Delaware in accordance
with the provisions of Section 263 of the DGCL and Section 17-211 of the
DRULPA, or such later time as is agreed to by ▇▇▇▇▇▇ and HenleyCo and
stated in such Certificate of Merger (substantially in the form attached
hereto as Exhibit A).
ARTICLE II
LIMITED PARTNERSHIP AGREEMENT
2.01. Surviving Entity Limited Partnership Agreement. The limited
partnership agreement of ▇▇▇▇▇▇ shall be the limited partnership agreement
of Surviving Entity at the Effective Time.
ARTICLE III
GENERAL PARTNER AND OFFICERS
3.01. General Partner. BCLP GP shall be the general partner of
Surviving Entity.
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3.02. Officers. The officers of Surviving Entity shall be the
officers of ▇▇▇▇▇▇ immediately prior to the Effective Time of the Merger.
ARTICLE IV
CONDITIONS TO THE MERGER
4.01 Conditions to the Merger. The obligations of the Constituent
Entities to consummate the Merger are subject to satisfaction of the
following conditions:
(a) no court or governmental entity of competent jurisdiction
shall have enacted, issued, promulgated or entered any law, order,
injunction or decree that is in effect and restrains, enjoins or otherwise
prohibits consummation of the Merger; and
(b) other than filing a Certificate of Merger with the
Secretary of State of the State of Delaware, all required authorizations,
consents or approvals of governmental entities shall have been obtained or
made free of any material condition.
ARTICLE V
AMENDMENT AND TERMINATION
5.01. Amendment. To the fullest extent permitted by Delaware law,
this Agreement may be amended by mutual consent of the parties hereto at
any time prior to the Effective Time, notwithstanding any approval of this
Agreement by the Unitholders or stockholders of either of the Constituent
Entities.
5.02 Termination. To the fullest extent permitted by Delaware law,
this Agreement may be terminated, and the Merger herein provided for may be
abandoned, by mutual consent of the parties hereto at any time prior to the
Effective Time, notwithstanding any approval of this Agreement by the
Unitholders or stockholders of the Constituent Entities. Each of the
parties hereto specifically reserves the right to terminate this Agreement
and abandon the Merger at any time prior to the Effective Time.
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IN WITNESS WHEREOF, this Agreement, having first been duly approved
by the boards of directors of HenleyCo, BCLP GP, in its capacity as
stockholder of HenleyCo and as general partner of ▇▇▇▇▇▇, and the general
partner of Castle Creek, is hereby executed on behalf of each the parties
hereto by a duly authorized officer thereof, this 3rd day of April, 2003.
▇▇▇▇▇▇ LIMITED PARTNERSHIP
By: BCLP GP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Office: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, and
Secretary
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HENLEYCO, INC.
By: BCLP GP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Office: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, and
Secretary
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CASTLE CREEK PARTNERS, L.P.
By: BCLP GP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Office: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, and
Secretary
---------------------------------------
BCLP GP, INC.
By: BCLP GP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Office: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, and
Secretary
---------------------------------------
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CERTIFICATE OF MERGER OF
HENLEYCO, INC.
(a Delaware corporation)
WITH AND INTO
▇▇▇▇▇▇ LIMITED PARTNERSHIP
(a Delaware limited partnership)
(Pursuant to Section 263 of the Delaware General Corporation Law
and Section 17-211 of the Delaware Revised Uniform Limited Partnership Act)
The undersigned hereby certifies that:
FIRST: The name and state of domicile of each of the constituent
entities participating in the merger herein certified are as follows:
Name State of Domicile
---- -----------------
▇▇▇▇▇▇ Limited Partnership Delaware
HenleyCo, Inc. Delaware
SECOND: An Agreement and Plan of Merger (the "Merger Agreement") has
been approved, adopted, certified, executed and acknowledged by the
constituent entities in accordance with Section 263(c) of the Delaware
General Corporation Law and Section 17-211(b) of the Delaware Revised
Uniform Limited Partnership Act.
THIRD: The name of the surviving limited partnership is ▇▇▇▇▇▇
Limited Partnership.
FOURTH: The merger is to become effective at on , 2003.
------ ------
FIFTH: The Merger Agreement is on file at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a place of business of the surviving
limited partnership.
SIXTH: A copy of the Merger Agreement will be furnished by the
surviving limited partnership on request, without cost, to any partner of
the constituent limited partnership or any stockholder of the constituent
corporation.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇ Limited Partnership has caused this certificate
of merger, pursuant to Section 263 of the Delaware General Corporation Law
and Section 17-211 of the Delaware Revised Uniform Limited Partnership Act,
to be signed by its general partner as of , 2003.
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▇▇▇▇▇▇ LIMITED PARTNERSHIP
By: BCLP GP, Inc., its general partner
By:
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Name:
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Title:
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