<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Diamond Shamrock Offshore Partners Limited Partnership
- --------------------------------------------------------------------------------
(Name of Issuer)
Depositary Units
- --------------------------------------------------------------------------------
(Title of Class of Securities)
25274410
------------------------------
(CUSIP Number)
Gerald J. Schissler
Senior Vice President, Law
Burlington Resources Inc.
5051 Westheimer, Suite 1400
Houston, Texas 77056
- --------------------------------------------------------------------------------
(Name, Address, and Telephone Number of Person Authorized to Receive Notices
and Communications)
April 26, 1994
------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this statement because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement /x/. (A fee
is not required only if the reporting person; (1) has a previous statement on
file reporting beneficial ownership of more than five perscent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this coverage page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for subsequent amendment containing information which would
alter disclosures provided in a prior coverage page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
CUSIP NO. 25274410
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
Meridian Offshore Company
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, U.S.A.
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
64,163,885
NUMBER OF
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
64,163,885
REPORTING
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH 0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
64,163,885 Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
87%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS
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SCHEDULE 13D
CUSIP NO. 25274410
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
Burlington Resources Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Deleware, USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
64,163,885
NUMBER OF
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
64,163,885
REPORTING
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH 0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
64,163,885 Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
87%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS
<PAGE> 4
This Statement on Schedule 13D is filed by Meridian Offshore Company,
a Delaware corporation (the "Company"), and Burlington Resources Inc., a
Delaware corporation ("BR"), relating to the units of limited partnership
interest (the "Units") of Diamond Shamrock Offshore Partners Limited
Partnership, a Delaware limited partnership (the "Partnership"), represented by
depositary receipts (the "Depositary Units").
Item 1. Security and Issuer.
The class of equity securities to which this Statement relates is the
Depositary Units of the Partnership. The principal executive offices of the
Partnership are located at the offices of the Company, as managing general
partner of the Partnership, at 5051 Westheimer, Houston, Texas 77056.
Item 2. Identity and Background.
(a) - (c); (f) Each of BR and the Company is a Delaware corporation
with its principal executive offices located at 5051 Westheimer, Houston, Texas
77056. The Company is a direct wholly owned subsidiary of Meridian Oil Inc.
("Meridian") and an indirect wholly owned subsidiary of BR, which was formed
for the purposes of acquiring the .99% managing general partnership interest of
Maxus Offshore Exploration Company ("Maxus Offshore") in the Partnership and
64,163,885 Units (the "Maxus Units") held by Maxus Exploration Company ("Maxus
Exploration"), and effecting the merger described herein. BR is a holding
company whose principal operating subsidiary is Meridian. Meridian is engaged
in (i) the exploration, development and production of oil and gas and (ii)
related marketing activities which include aggregation and resale of
third-party oil and gas, operating intrastate natural gas pipelines and holding
interests in crude oil pipelines.
For information with respect to the executive officers and directors
of the Company and BR, see Schedule 1 hereto.
(d) and (e) During the last 5 years, none of the Company, Meridian
and BR nor, to the best knowledge of the Company and BR, any of the persons
listed on Schedule 1 hereto (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) was a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining further violations of, or prohibiting actions subject to,
federal or state securities laws or finding any violation of such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The aggregate amount of funds needed by the Company to purchase the
Maxus Units and to consummate the merger described herein is approximately
$331 million. The Company obtained or will obtain all such funds through
capital contributions or advances made by Meridian. Meridian obtained or will
obtain all such funds from working capital.
<PAGE> 5
Item 4. Purpose of Transaction.
On April 26, 1994, the Company acquired the .99% managing general
partnership interest in the Partnership of Maxus Offshore and 64,163,885 Units
held by Maxus Exploration, and Meridian Offshore Acquisition Company
("Acquisition"), an affiliate of the Company, acquired the .01% special general
partnership interest in the Partnership of Maxus Energy Corporation
(collectively with Maxus Offshore and Maxus Exploration, "Maxus"), for an
aggregate purchase price of $291,088,000 or approximately $4.485 per Unit. As
a result of this transaction, the Company became the managing general partner
of the Partnership and Acquisition became the special general partner of the
Partnership. On April 28, 1994, the Company and the Partnership entered into
an agreement and plan of merger (the "Merger Agreement"), pursuant to which the
Partnership will be merged with and into the Company (the "Merger"), and
holders of Units at the effective time of the Merger (other than the Company
and its affiliates) will receive $4.485 per Unit in cash, without interest,
which is the same price paid to acquire the Maxus Units. Also on April 28,
1994, each of the Company and Acquisition executed a written consent approving
the Merger. As a result of the execution of such consents, no vote or consent
of any other Unit holder is required to effect the Merger.
The purpose of the acquisition of Maxus' interests in the Partnership
and the Merger is to acquire all of the outstanding Units, thereby acquiring
the entire equity interest in the Partnership. As a result of the Merger,
holders of Units (other than the Company and its affiliates) will cease to have
any ownership interest in the Partnership, the Depositary Units will be
delisted from the New York Stock Exchange and the Pacific Stock Exchange, and
the registration of the Depositary Units under the Securities Exchange Act will
be terminated.
Unit holders of record on May 13, 1994 will receive the Partnership
distribution of $.13 per Unit declared on April 25, 1994, which is payable on
June 7, 1994.
Except as described above, BR and the Company have no present plans or
proposals that would related to or result in an acquisition or disposition of
Units, any extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Partnership or any of its
subsidiaries, a sale or transfer of a material amount of assets of the
Partnership or any of its subsidiaries, any change in the Partnership's
management, any material change in the present capitalization or dividend
policy of the Partnership, any other material change in the Partnership's
business or structure, any change in the Partnership's governing instruments or
other actions which may impede the acquisition of control of the Partnership,
or any action similar to those enumerated above.
On April 27, 1994, a purported class action entitled Susser vs.
Burlington Resources Inc., et al. (C.A. No. 13483) (the "Action") was filed in
the Delaware Chancery Court. The complaint (which names as defendants BR, the
Partnership, Maxus Energy Corporation, Maxus Offshore and three officers and
directors of Maxus Offshore) alleges, among other things, (i) that the proposed
purchase price to be paid to Unit holders does not represent the true value of
the assets and future prospects underlying the limited partnership interests in
the Partnership,
<PAGE> 6
but is an attempt to benefit BR unfairly at the expense of Unit holders, that
the market value and intrinsic value of the Units was and is materially in
excess of $4.48 per Unit and that the purchase price is not the result of arm's
length negotiations, (ii) defendants' announcement of the proposed Merger fails
to adequately disclose, inter alia, whether defendants obtained a fairness
opinion from an independent investment bank and that allegedly the Partnership
was on the verge of reporting sustained and significant profits and (iii) that
Maxus and BR have breached and continue to breach their purported fiduciary
duties as past and present controlling security holders of the Partnership,
including that Maxus did not attempt to achieve the highest possible price for
the Partnership. The complaint seeks, among other things, preliminary and
permanent injunctive relief and unspecified damages. BR and the Company
believe that the Action is wholly without merit and intend to defend it
vigorously.
Item 5. Interest in Securities of the Issuer.
(a)-(c) On April 26, 1994 the Company and BR acquired from Maxus
64,163,885 Units (consisting of 248,700 Depositary Units and 63,915,185 Units
not currently evidenced by depositary receipts which would become Depositary
Units upon deposit of such Units with the depositary and issuance of depositary
receipts therefor) in a private transaction at a purchase price of $4.485 per
Unit. The foregoing Units represent approximately 87% of the outstanding
Units.
(d) and (e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
On April 26, 1994, the Company, Acquisition and Maxus entered into a
unit purchase agreement (the "Unit Purchase Agreement"), pursuant to which the
Company and Acquisition purchased all of the general and limited partnership
interests of Maxus in the Partnership, including the Maxus Units, for
$291,088,000. Pursuant to the Unit Purchase Agreement, Maxus made various
representations and warranties to the Company and Acquisition regarding the
financial condition, assets and liabilities of the Partnership and other
matters, and agreed to indemnify the Company and Acquisition against breaches
of its representations and warranties and agreements in the Unit Purchase
Agreement and certain other matters.
On April 28, 1994, the Company and the Partnership entered into the
Merger Agreement, pursuant to which the Partnership will be merged with and
into the Company and holders of Depositary Units will receive $4.485 per Unit
in cash, without interest.
Item 7. Material to be Filed as Exhibits.
Exhibit No.
- -----------
1. Unit Purchase Agreement dated April 26, 1994 among Maxus Energy
Corporation, Maxus Offshore Exploration Company, Maxus
Exploration Company, Meridian Offshore Company and Meridian
Offshore Acquisition Company.
2. Agreement and Plan of Merger dated as of April 28, 1994 between
Diamond Shamrock Offshore Partners Limited Partnership and
Meridian Offshore Company.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
MERIDIAN OFFSHORE COMPANY
By: /s/ L. David Hanower
___________________________________
Title: Senior Vice President
May 6, 1994
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BURLINGTON RESOURCES INC.
By: /s/ L. David Hanower
_________________________________
Title: Vice President, Law
May 6, 1994
<PAGE> 9
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF BR AND THE COMPANY
The following tables set forth the name, business address and present
principal occupation or employment of the directors and executive officers of
BR and the Company. Unless otherwise indicated, the business address of each
individual listed below is 5051 Westheimer, Houston, Texas 77056. Each
individual listed below is a citizen of the United States.
Directors of BR
---------------
Name and Business Address Present Principal Occupation or
- ------------------------- Employment (Principal Business)
-------------------------------
John V. Byrne President of Oregon State University.
3520 Northwest Hayes
Corvallis, Oregon 97330
S. Parker Gilbert Retired.
Morgan Stanley Group, Inc.
1251 Avenue of the Americas
New York, New York 10020
James F. McDonald President and Chief Executive Officer
Scientific-Atlanta, Inc. of Scientific-Atlanta, Inc. (telecom-
One Technology Pkwy South munications).
Norcross, Georgia 30092
Thomas H. O'Leary Chairman of the Board, President and Chief
Burlington Resources Inc. Executive Officer of BR.
999 Third Avenue
Suite 2810
Seattle, Washington 98104
Donald M. Roberts Vice Chairman and Treasurer, United
United States Trust Company States Trust Company of New York.
of New York
114 West 47th Street
New York, New York 10036
Walter Scott, Jr. Chairman and President of Peter Kiewit
Peter Kiewit Sons', Inc. Sons', Inc. (construction, mining and
1000 Kiewit Plaza telecommunications).
Omaha, Nebraska 68131
William E. Wall Of Counsel, Siderius Lonergan (law).
2450 Westmont Way
Seattle, Washington 98199
<PAGE> 10
Executive Officers of BR
------------------------
Name and Business Address Present Principal Occupation or
- ------------------------- Employment (Principal Business)
-------------------------------
John E. Hagale Senior Vice President and Chief
Financial Officer of BR; Executive
Vice President and Chief Financial
Officer of Meridian Oil Inc., a
subsidiary of BR ("Meridian");
Executive Vice President and Chief
Financial Officer and Director of
the Company.
Harold E. Haunschild Vice President, Human Resources, of
BR; Executive Vice President, Human
Resources and Administration, of
Meridian; Executive Vice President of
the Company.
George E. Howison President and Chief Executive Officer
of Meridian; President of the Company.
L. Edward Parker Executive Vice President, Marketing,
of Meridian; Executive Vice President of
the Company.
Gerald J. Schissler Senior Vice President, Law, of BR;
Executive Vice President, Law and
Corporate Affairs, of Meridian; Executive
Vice President and Director of the Company.
Bobby S. Shackouls Executive Vice President and Chief
Operating Officer of Meridian; Executive
Vice President and Director of the Company.
<PAGE> 1
UNIT PURCHASE AGREEMENT
Dated April 26, 1994
Among
MAXUS ENERGY CORPORATION,
MAXUS EXPLORATION COMPANY,
MAXUS OFFSHORE EXPLORATION COMPANY,
MERIDIAN OFFSHORE COMPANY
And
MERIDIAN OFFSHORE ACQUISITION COMPANY
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Purchase and Sale . . . . . . . . . . . . . 1
SECTION 1.02 Closing . . . . . . . . . . . . . . . . . . 3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLERS . . . . . . . . 3
SECTION 2.01 Organization and Qualification . . . . . . 3
SECTION 2.02 Authority Relative to this Agreement . . . 4
SECTION 2.03 Absence of Certain Changes . . . . . . . . 4
SECTION 2.04 Litigation . . . . . . . . . . . . . . . . 5
SECTION 2.05 Reports . . . . . . . . . . . . . . . . . . 5
SECTION 2.06 Consents and Approvals; No Violation . . . 5
SECTION 2.07 Compliance with Law . . . . . . . . . . . 6
SECTION 2.08 Title . . . . . . . . . . . . . . . . . . . 6
SECTION 2.09 Intercompany Arrangements . . . . . . . . . 6
SECTION 2.10 The Partnership . . . . . . . . . . . . . . 7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASERS . . . . . . 7
SECTION 3.01 Organization and Qualification . . . . . . 7
SECTION 3.02 Authority Relative to this Agreement . . . 7
SECTION 3.03 Securities Act . . . . . . . . . . . . . . 7
ARTICLE IV COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.01 Termination of Intercompany Arrangements . 8
SECTION 4.02 Reasonable Best Efforts . . . . . . . . . . 8
SECTION 4.03 Fees and Expenses . . . . . . . . . . . . . 8
</TABLE>
(i)
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<TABLE>
<S> <C> <C>
ARTICLE V INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5.01 Indemnification . . . . . . . . . . . . . . . . . . 8
ARTICLE VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.01 Survival of Representations and Warranties . . . . 10
SECTION 6.02 Entire Agreement; Assignment . . . . . . . . . . . 10
SECTION 6.03 Amendment . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.04 Waiver . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.05 Validity . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.06 Notices . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.07 Governing Law . . . . . . . . . . . . . . . . . . . 11
SECTION 6.08 Descriptive Headings . . . . . . . . . . . . . . . 11
SECTION 6.09 Counterparts . . . . . . . . . . . . . . . . . . . 11
SECTION 6.10 Further Assurances . . . . . . . . . . . . . . . . 12
</TABLE>
(ii)
<PAGE> 4
UNIT PURCHASE AGREEMENT
UNIT PURCHASE AGREEMENT, dated April 26, 1994 (the "Agreement"), among
Maxus Energy Corporation, a Delaware corporation ("Parent"), Maxus Exploration
Company, a Delaware corporation and a wholly-owned subsidiary of Parent
("Exploration"), Maxus Offshore Exploration Company, a Delaware corporation and
an indirect wholly-owned subsidiary of Parent (the "MGP" and, together with
Parent and Exploration, "Sellers"), Meridian Offshore Company, a Delaware
corporation ("MGP Purchaser"), and Meridian Offshore Acquisition Company, a
Delaware corporation ("SGP Purchaser" and, together with MGP Purchaser,
"Purchasers").
Background
Parent, Exploration and the MGP are the owners of partnership
interests in Diamond Shamrock Offshore Partners Limited Partnership, a Delaware
limited partnership (the "Partnership"), consisting of (i) the .99% managing
general partnership interest of the MGP in the Partnership, (ii) the .01%
special general partnership interest of Parent in the Partnership and (iii)
64,163,885 LP Units (as defined in the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, as amended (the "Partnership
Agreement")) held by Exploration (collectively, such general partnership
interests and LP Units being referred to as the "Partnership Interests") which,
in the aggregate, constitute 87.1% of the partnership interests in the
Partnership.
MGP Purchaser desires to purchase the .99% managing general
partnership interest of MGP in the Partnership and the LP Units held by
Exploration, and SGP Purchaser desires to purchase the .01% special general
partnership interest of Parent in the Partnership, and Sellers desire to sell
the Partnership Interests to the Purchasers, upon the terms and subject to the
conditions of this Agreement.
Now, therefore, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
SECTION 1.01 Purchase and Sale. (a) Concurrently with the execution
and delivery of this Agreement, the following transactions shall take place in
the following order:
(i) the MGP in accordance with Section 12.4 of
the Partnership Agreement shall execute and file with the Secretary of State of
the State of Delaware a Certificate of Amendment to the Certificate of Limited
Partnership of the Partnership
<PAGE> 5
(the "Certificate of Limited Partnership"), naming MGP Purchaser as the new
managing general partner of the Partnership and MGP Purchaser shall deliver all
documents required pursuant to Section 11.2(c) of the Partnership;
(ii) the MGP shall sell to MGP Purchaser, free and
clear of all liens, claims, charges, encumbrances and rights of others of any
nature whatsoever (collectively, "Liens"), and MGP Purchaser shall purchase
from the MGP, all of the assets of the MGP, which include the .99% managing
general partnership interest of the MGP in the Partnership;
(iii) Purchasers shall cause Meridian Oil Inc.
("MOI") to contribute to MGP Purchaser a demand promissory note of MOI in the
amount of $32 million;
(iv) Exploration shall sell to MGP Purchaser, free
and clear of all Liens, and MGP Purchaser shall purchase from Exploration, the
64,163,885 LP Units held by Exploration;
(v) MGP Purchaser, as managing general partner,
shall consent to (a) the transfer of the .01% special general partnership
interest of Parent in the Partnership to SGP Purchaser and (b) the selection of
SGP Purchaser as the successor special general partner of the Partnership
pursuant to Section 13.2(b) of the Partnership Agreement and SGP Purchaser
shall deliver all documents required pursuant to Section 11.2(b) of the
Partnership Agreement; and
(vi) Parent shall sell to SGP Purchaser, free and
clear of all Liens, and SGP Purchaser shall purchase from Parent, the .01%
special general partnership interest of Parent in the Partnership.
The purchase price for the Partnership Interests shall be $291,088,000
in cash (the "Purchase Price"). Schedule 1.01 sets forth the allocation of the
Purchase Price among the Partnership Interests. The amount and payment of the
Purchase Price is conditioned and contingent upon (a) Exploration assuming the
obligations of Parent under Parent's outstanding promissory note (the "Note")
in favor of the Partnership and (b) Exploration using $36,849,635 of the
Purchase Price to repay the amount estimated to be outstanding under the Note
as of the date hereof and $253,050 of the Purchase Price to satisfy its
obligations under Section 14(c) of the Transition Agreement, which amounts
shall be held separately by Exploration, shall not be commingled with any other
funds of any of Sellers and shall not be available to any creditor of any of
Sellers. Purchasers and Sellers each will deliver all other notices and
documents and take all other actions necessary to be taken on their part,
respectively, under Sections 12.5 and 12.6 of the Partnership Agreement to
effectuate the transfer to Purchasers of the general
-2-
<PAGE> 6
partnership interests in the Partnership. The parties acknowledge that the
$36,849,635 being paid by Exploration to the Partnership in repayment of the
Note is a good faith estimate and that the actual amount outstanding as of the
date hereof may be greater or less than such amount. As promptly as
practicable after the date hereof, the parties shall determine the actual
amount outstanding under the Note and Exploration shall pay to the Partnership,
or Purchasers shall cause the Partnership to pay to Exploration, as
appropriate, the difference, if any, between the estimated outstanding amount
of the Note and the actual outstanding amount of the Note as of the date
hereof.
(b) Concurrently with the execution and delivery of this
Agreement, (i) Sellers are conveying or causing to be conveyed to MGP
Purchaser, free and clear of all Liens, all seismic data, land files, well
files, accounting files and other information owned by Sellers and their
affiliates relating to the properties owned by the Partnership and (ii) Parent
and MGP Purchaser are entering into a Transition Services Agreement (the
"Transition Agreement").
SECTION 1.02 Closing. Concurrently with the execution and delivery of
this Agreement and the consummation of the transactions contemplated by Section
1.01, Purchasers will deliver to Sellers, by wire transfer of immediately
available funds, the Purchase Price and Sellers will deliver to Purchasers
certificates (with powers attached) representing, or other instruments of
transfer or assignment satisfactory to Purchasers in respect of, the
Partnership Interests, which certificates or powers will be in the name of or
duly endorsed for transfer to MGP Purchaser or SGP Purchaser, as the case may
be. Sellers will pay any documentary stamp or transfer taxes or charges
resulting from the purchase and sale of the Partnership Interests.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF SELLERS
Sellers jointly and severally represent and warrant to Purchasers as
follows:
SECTION 2.01 Organization and Qualification. (a) Each Seller and
Pipeline (as defined below) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
and has the requisite corporate power and authority to carry on its business as
it is now being conducted.
(b) The Partnership is a limited partnership duly formed,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite power and authority to carry on its business as it is now
being conducted. The Partnership is duly qualified or licensed to do business
and is in good standing in each
-3-
<PAGE> 7
jurisdiction in which the nature of its business or the properties owned or
leased by it makes such qualification necessary, except where the failure to be
so qualified or licensed would not have a material adverse effect on it. The
copies of the Partnership Agreement, the Certificate of Limited Partnership,
the Depositary Agreement (as defined in the Partnership Agreement) and the
Certificate of Incorporation and Bylaws of Pipeline previously delivered to
Purchasers are true, complete and correct as of the date hereof. Except for
the Amendment dated April 25, 1994, the Partnership Agreement has not been
amended since October 17, 1985. The Partnership Agreement, as amended, is in
full force and effect and all amendments thereto have been validly adopted.
(c) The Partnership does not have any subsidiaries,
except for Diamond Shamrock Offshore Pipeline Company ("Pipeline"). Pipeline
has not engaged in any activities other than gathering hydrocarbons for the
Partnership's properties and has no liabilities or obligations of any nature,
other than obligations to the Partnership and tax liabilities referred to
below. There is no suit, action or proceeding pending or threatened against
Pipeline. The representations and warranties of the Partnership in this
Article II shall also be deemed, where applicable, to be made with respect to
Pipeline. Pipeline has timely filed all tax returns required to be filed by
it, and has never joined in the filing of a consolidated tax return with any
company. All tax liabilities of Pipeline attributable to the income,
activities or property of Pipeline through the date of execution and delivery
of this Agreement have been paid or provided for on the books of Pipeline.
SECTION 2.02 Authority Relative to this Agreement. (a) Each Seller
has all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by each Seller and the consummation by
each Seller of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of each Seller and no
other corporate proceedings on the part of any Seller are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by each Seller
and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with the terms hereof.
(b) The transfer of the Partnership Interests
contemplated hereby complies with the terms of the Partnership Agreement and
has been duly and validly authorized by all necessary actions required under
the Partnership Agreement and no other proceedings on the part of any party are
necessary to consummate the transfer of the Partnership Interests contemplated
hereby.
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<PAGE> 8
SECTION 2.03 Absence of Certain Changes. Except as disclosed in the
Partnership's filings and reports under the Securities Exchange Act of 1934
(the "Exchange Act") or as contemplated by this Agreement, since December 31,
1993 through the date of this Agreement, the Partnership has conducted its
business only in the ordinary course and no event has occurred that would have
a material adverse effect on the Partnership. Except as disclosed in the
Partnership's filings and reports under the Exchange Act or on Schedule 2.03,
since December 31, 1993 there has not been (a) any declaration, setting aside
or payment of any dividend or other distribution in respect of any partnership
interest in the Partnership, or any redemption, repurchase or other acquisition
by the Partnership of any partnership interest; (b) any entry into any
agreement, commitment or transaction by the Partnership which is material to
the Partnership, except agreements, commitments or transactions in the ordinary
course of business; or (c) any significant change by the Partnership in
accounting methods, principles or practices except as required or permitted by
generally accepted accounting principles.
SECTION 2.04 Litigation. There is no suit, action or proceeding
pending or, to the knowledge of management of any Seller, threatened against or
affecting the Partnership, or any Seller that individually or in the aggregate
could reasonably be expected to have a material adverse effect on the
Partnership nor is there any judgment, decree, injunction or order of any
Federal, state or local government or any court, administration or regulatory
agency or commission or other governmental authority or agency or arbitrator
outstanding against the Partnership or any Seller having any such effect.
SECTION 2.05 Reports. Since December 31, 1990, the Partnership has
filed all required forms, reports and documents with the Securities and
Exchange Commission (the "SEC") required to be filed by it pursuant to the
Federal securities laws and the SEC rules and regulations thereunder, all of
which complied as of their respective filing dates in all material respects
with all applicable requirements of the Securities Act of 1933 (the "Securities
Act"), the Exchange Act and the rules and regulations promulgated thereunder.
All such forms, reports and documents have been made available to Purchasers.
None of such forms, reports or documents at the time filed contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The audited
and unaudited consolidated financial statements of the Partnership included (or
incorporated by reference) in such forms, reports or documents present fairly
in all material respects the financial position of the Partnership and its
subsidiaries as of their respective dates, and the results of operations and
cash flows for the periods presented therein in conformity with generally
accepted accounting principles applied on a consistent basis, subject, in the
case of the unaudited interim financial statements, to normal year-end audit
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<PAGE> 9
adjustments which are not expected to be materially adverse to the Partnership
and except that the quarterly financial statements do not contain all of the
footnote disclosures required by generally accepted accounting principles.
Except as disclosed in the audited consolidated financial statements of the
Partnership as of December 31, 1993, the Partnership does not have any material
liabilities or obligations of any nature, whether accrued, absolute, contingent
or otherwise, except for liabilities or obligations incurred in the ordinary
course of business since December 31, 1993. The information contained in
Schedule 2.05, which sets forth a list of interests owned by the Partnership in
oil and gas leases, is true and correct in all material respects. There are no
agreements involving leases with proved or proved undeveloped reserves carried
on the Partnership's books as of December 31, 1993 and listed on Schedule 2.05
which would, without further action by the Partnership after the date hereof,
materially reduce the Partnership's interests in such leases except as noted on
Schedule 2.05. The MGP has no assets other than its .99% managing general
partnership interest in the Partnership.
SECTION 2.06 Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by any Seller nor the consummation of
the transactions contemplated hereby will (i) conflict with or result in any
breach of any provision of the certificate of incorporation or by-laws of any
Seller; (ii) require any consent of, approval of, filing with or notification
to, any governmental or regulatory authority, except where the failure to
obtain such would not individually or in the aggregate have a material adverse
effect on the Partnership; (iii) result in a violation of or a default (or give
rise to any right of termination, cancellation or acceleration or loss of any
material benefit) under any loan or credit agreement, note or other agreement,
instrument, obligation, permit, concession, franchise or license to which the
Partnership, or any Seller or by which any of their respective properties or
assets may be bound, except for such violations or defaults (or rights of
termination, cancellation or acceleration or loss of material benefits) as to
which requisite waivers or consents have been obtained or which individually or
in the aggregate would not have a material adverse effect on the Partnership;
(iv) violate any judgment, order, writ, injunction, decree, statute, law,
ordinance, rule or regulation applicable to the Partnership, or any Seller or
any of their respective assets, except for violations which would not
individually or in the aggregate have a material adverse effect on the
Partnership; or (v) trigger any preferential rights with respect to the
properties owned by the Partnership.
SECTION 2.07 Compliance with Law. The Partnership has not violated or
failed to comply with any statute, ordinance, regulation, rule or order of any
foreign, Federal, state or local government or any other governmental
department or agency, or any judgment, decree or order of any court, applicable
to its business or operations except where any such violations or failures to
comply would not, individually or in the aggregate, have a material adverse
effect on the Partnership; and the conduct of the Partnership's business is in
conformity with all Federal, state and local requirements,
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<PAGE> 10
except where such non-conformities individually or in the aggregate would not
have a material adverse effect on the Partnership. The Partnership has all
permits, licenses, authorizations, consents, approvals and franchises from
governmental agencies required to conduct its business as now being conducted,
except for such permits, licenses, authorizations, consents, approvals and
franchises the absence of which would not individually or in the aggregate have
a material adverse effect on the Partnership.
SECTION 2.08 Title. Each Seller has good and marketable title to the
Partnership Interests owned by it, free and clear of all Liens.
SECTION 2.09 Intercompany Arrangements. Except with respect to the
matters disclosed in Schedule 2.09, none of Sellers nor any of their respective
affiliates is a creditor of, or has any arrangement or transaction (contractual
or otherwise) with the Partnership. Since December 31, 1993, except with
respect to the matters disclosed in Schedule 2.09, there has not been any
payment by the Partnership to any Seller or any of their respective affiliates,
any charge by any Seller or any of their respective affiliates to the
Partnership or any other arrangement or transaction (contractual or otherwise)
between the Partnership and any Seller or any of their respective affiliates.
Sellers' good faith estimate of the outstanding amount of the Note as of the
date hereof is $36,849,635.
SECTION 2.10 The Partnership. The partnership interests in the
Partnership are comprised of (i) the .99% general partnership of the MGP in the
Partnership, (ii) the .01% general partnership interest of Parent in the
Partnership and (iii) the 99% limited partnership interest of the limited
partners in the Partnership. The limited partnership interests are represented
by an aggregate of 73,761,740 LP Units. As of the date of this Agreement,
there are not any authorized or outstanding subscriptions, options, warrants,
rights, commitments or other agreements, arrangements or undertakings
obligating the Partnership to issue any additional partnership interests or any
additional LP Units or any other security or instrument convertible into or
exchangeable for any such partnership interests or LP Units. The Partnership
does not have any employees. The Partnership has in effect a valid election
under section 754 of the Internal Revenue Code and has not been, and is not now
subject to, income taxation by any governmental entity. There is no
grandfathered or other beneficial tax status of the Partnership which would be
adversely affected by the transactions contemplated hereby.
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<PAGE> 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PURCHASERS
Purchasers jointly and severally represent and warrant to Sellers as
follows:
SECTION 3.01 Organization and Qualification. Each Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization or incorporation and has the
requisite corporate power and authority to carry on its business as it is now
being conducted.
SECTION 3.02 Authority Relative to this Agreement. Each Purchaser has
all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery by each Purchaser of this Agreement and the consummation
by each Purchaser of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of such
Purchaser and no other corporate proceedings on the part of such Purchaser are
necessary to authorize this Agreement or to consummate the transactions
contemplated by this Agreement. This Agreement has been duly and validly
executed and delivered by each Purchaser and constitutes a legal, valid and
binding obligation of each Purchaser, enforceable against each Purchaser in
accordance with its terms.
SECTION 3.03 Securities Act. The Partnership Interests purchased by
Purchasers will be acquired for investment only and not with a view to any
public distribution thereof and Purchasers will not offer to sell or otherwise
dispose of any Partnership Interest so acquired by them in violation of the
registration requirements of the Securities Act.
ARTICLE IV
COVENANTS
SECTION 4.01 Termination of Intercompany Arrangements. Simultaneously
with the execution and delivery of this Agreement, Exploration is repaying to
the Partnership all amounts estimated to be outstanding under the Note as of
the date hereof, together with accrued and unpaid interest thereon to the date
of payment but without any prepayment or other similar penalty. Except as
otherwise provided in the Transition Agreement, promptly upon request of the
Partnership or Purchasers, Sellers will repay any other indebtedness or
liabilities of Sellers or any of their respective affiliates to the Partnership
or terminate any arrangement or transaction (contractual or otherwise)
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<PAGE> 12
between the Partnership and any Seller or any of their respective affiliates,
without any termination or other penalty or any future liability of any kind.
Each Seller hereby waives any rights it may have, severally or jointly, to
indemnification under the Partnership Agreement.
SECTION 4.02 Reasonable Best Efforts. Subject to the terms and
conditions hereof, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all appropriate actions, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations in connection with the consummation of the transactions
contemplated by this Agreement.
SECTION 4.03 Fees and Expenses. All fees and expenses incurred in
connection with this Agreement and the transactions contemplated by this
Agreement shall be paid by the party incurring such fees or expenses, whether
or not the transactions contemplated hereby are consummated.
ARTICLE V
INDEMNIFICATION
SECTION 5.01 Indemnification. (a) Each Seller jointly and severally
agrees to indemnify, defend and hold harmless Purchasers, after the Closing,
from and against any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses, including,
without limitation, interest, penalties and attorneys' fees and expenses
("Damages"), asserted against, resulting from, imposed upon or incurred by
Purchasers or any of their affiliates, directly or indirectly, arising out of,
resulting from or relating to (i) a breach of any representation, warranty or
agreement of any Seller contained in or made pursuant to this Agreement or any
facts or circumstances constituting such a breach, (ii) the Partnership's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1994 and all
other forms, reports and documents filed by the Partnership with the SEC prior
to the Closing, (iii) any indebtedness of any Seller or any of their respective
affiliates to the Partnership, or any transaction or arrangement (contractual
or otherwise) involving the Partnership and any Seller or any of their
respective affiliates, other than transactions or arrangements set forth in
Sections 2, 3, 4, 5, 8 and 14 of the Transition Agreement, and (iv) the
transactions contemplated pursuant to that certain agreement of purchase and
sale (the "Sale Agreement") dated as of March 28, 1994, by and between the
Partnership and Pogo Producing Company (collectively, "Claims").
(b) Assertion of Claims. In the event that either
Purchaser desires to make a Claim against Sellers under paragraph (a) above,
the party to be indemnified (the "Indemnified Party") will give each Seller
(the "Indemnifying Parties") prompt notice of
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<PAGE> 13
any such Claim, and the Indemnifying Parties will undertake the defense thereof
by representatives chosen by them which are reasonably satisfactory to the
Indemnified Party. The failure to promptly notify the Indemnifying Parties
hereunder shall not relieve such parties of their obligations hereunder except
to the extent such failure to promptly notify materially prejudices the
Indemnifying Parties. If the Indemnifying Parties, within a reasonable time
after notice of any such Claim, fail to defend such Claim, the Indemnified
Party will have the right to undertake the defense, compromise or settlement of
such Claim on behalf of and for the account and risk of the Indemnifying
Parties, subject to the right of the Indemnifying Parties to assume the defense
of such Claim at any time prior to settlement, compromise or final
determination thereof. If an Indemnifying Party shall assume the defense of
any Claim the Indemnifying Party shall assume all past and future
responsibility for such Claim and shall reimburse the Indemnified Parties for
all costs and expenses previously incurred by them or their affiliates relating
thereto. If the Indemnifying Parties have undertaken defense of a Claim and if
there is a reasonable probability that (i) a Claim may materially and adversely
affect the Indemnified Party other than as a result of money damages or other
money payments, or (ii) the Indemnifying Parties shall not have employed
counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party
shall have the right, at the Indemnifying Parties' cost and expense, to defend
or compromise or settle on a reasonable basis such Claim. The Indemnifying
Parties shall not, without the written consent of the Indemnified Party, settle
or compromise any Claim or consent to the entry of any judgment which does not
include as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party of a release satisfactory to the Indemnified
Party from all liability in respect of such Claim.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Survival of Representations and Warranties and
Indemnities. The representations and warranties made in this Agreement or any
instrument delivered in connection with this Agreement shall survive after the
Closing until the second anniversary thereof, whereupon such representations
and warranties and all rights to indemnification under this Agreement shall
expire (except (i) to the extent that a claim for indemnification has been
asserted hereunder prior to such expiration, in which event the rights to
indemnification hereunder shall continue with respect to such claim until the
resolution and satisfaction of such claim, (ii) that the rights to
indemnification under Section 5.01(a)(iv) shall survive for the same term as
any rights to indemnification under the Sale Agreement and (iii) that the
representations and warranties in this Agreement with respect to tax
liabilities of Pipeline and the tax liabilities, tax elections and tax status
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<PAGE> 14
of the Partnership and the related rights to indemnification hereunder shall
survive for the applicable statute of limitations).
SECTION 6.02 Entire Agreement; Assignment. This Agreement constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof. Neither this Agreement nor any right, interest or obligation under
this Agreement shall be assigned, in whole or in part, by operation of law or
otherwise without the prior written consent of the other parties; provided that
Purchasers may assign any of their rights and obligations to any direct or
indirect wholly-owned subsidiary of MOI, but no such assignment shall relieve
Purchasers of their obligations hereunder. Subject to the preceding sentence,
this Agreement will be binding upon, and inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
SECTION 6.03 Amendment. This Agreement may not be amended except by
an instrument in writing signed on behalf of all the parties.
SECTION 6.04 Waiver. The parties hereto, may (i) waive any
inaccuracies in the representations and warranties contained herein by any
other applicable party or (ii) subject to the terms hereof, waive compliance
with any of the agreements or conditions contained herein. Any agreement on
the part of any party to any such waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of a party
to this Agreement to assert any of its rights under this Agreement shall not
constitute a waiver of those rights.
SECTION 6.05 Validity. In the event any one or more of the provisions
contained in this agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 6.06 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered in person, by overnight courier (providing proof
of delivery), facsimile transmission with confirmation of receipt, or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties as follows:
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<PAGE> 15
if to Sellers:
Maxus Energy Corporation
717 North Harwood Street
Dallas, Texas 75201
Attention: Steven G. Crowell
Telephone: (214) 953-2733
Telecopy: (214) 979-1911
if to Purchasers:
c/o Meridian Oil Inc.
P.O. Box 4239
Houston, Texas 77210
Attention: Randolph P. Mundt
Telephone: (713) 831-1781
Telecopy: (713) 831-1700
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
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<PAGE> 16
SECTION 6.07 Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Texas
regardless of the laws that might otherwise govern under principles of
conflicts of laws applicable thereto.
SECTION 6.08 Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
SECTION 6.09 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties.
SECTION 6.10 Further Assurances. After the date hereof, each of the
parties shall execute, acknowledge and deliver to the other such further
instruments and documents, including, without limitation, transfer orders or
letters in lieu thereof, and take all such other actions as may be reasonably
necessary to carry out the provisions of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its respective officers thereunto duly authorized,
all on the date first above written.
MAXUS ENERGY CORPORATION
By /s/ McCarter Middlebrook
_____________________________________
Name: McCarter Middlebrook
Title: Vice President
MAXUS EXPLORATION COMPANY
By /s/ McCarter Middlebrook
_____________________________________
Name: McCarter Middlebrook
Title: Vice President
MAXUS OFFSHORE EXPLORATION COMPANY
By /s/ McCarter Middlebrook
_____________________________________
Name: McCarter Middlebrook
Title: Vice President
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<PAGE> 17
MERIDIAN OFFSHORE COMPANY
By /s/ Randolph P. Mundt
____________________________________
Name: Randolph P. Mundt
Title: President
MERIDIAN OFFSHORE ACQUISITION
COMPANY
By /s/ Randolph P. Mundt
____________________________________
Name: Randolph P. Mundt
Title: President
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<PAGE> 1
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- --------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
DATED AS OF APRIL 28, 1994
BETWEEN
DIAMOND SHAMROCK OFFSHORE PARTNERS
LIMITED PARTNERSHIP
AND
MERIDIAN OFFSHORE COMPANY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
AGREEMENT AND PLAN OF MERGER............................................................. 1
Background............................................................................... 1
ARTICLE I THE MERGER..................................................................... 1
SECTION 1.01 The Merger................................................................ 1
SECTION 1.02 Effective Time............................................................ 2
SECTION 1.03 Effects of the Merger..................................................... 2
SECTION 1.04 Certificate of Incorporation and By-Laws.................................. 2
SECTION 1.05 Directors and Officers.................................................... 2
SECTION 1.06 Conversion of Units....................................................... 2
SECTION 1.07 Closing................................................................... 3
ARTICLE II EXCHANGE OF UNITS............................................................. 3
SECTION 2.01 Exchange of Certificates.................................................. 3
SECTION 2.02 Distribution.............................................................. 4
ARTICLE III CONDITIONS TO CONSUMMATION OF THE MERGER..................................... 4
SECTION 3.01 Conditions to Each Party's Obligation to Effect the Merger................ 5
ARTICLE IV MISCELLANEOUS................................................................. 5
SECTION 4.01 Amendment................................................................. 5
SECTION 4.02 Entire Agreement; Assignment.............................................. 5
SECTION 4.03 Validity.................................................................. 5
SECTION 4.04 Governing Law............................................................. 5
SECTION 4.05 Descriptive Headings...................................................... 6
SECTION 4.06 Parties in Interest....................................................... 6
SECTION 4.07 Counterparts.............................................................. 6
</TABLE>
(i)
<PAGE> 3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of April 28, 1994 (the "Agreement"),
between DIAMOND SHAMROCK OFFSHORE PARTNERS LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Partnership"), and MERIDIAN OFFSHORE COMPANY, a
Delaware corporation (the "Company").
BACKGROUND
The Board of Directors of the Company has approved on behalf of the
Company, and the Company, in its capacity as managing general partner of the
Partnership, has approved on behalf of the Partnership, upon the terms and
subject to the conditions set forth in this Agreement, the merger of the
Partnership into the Company (the "Merger"), whereby each outstanding LP Unit
(as defined in the Second Amended and Restated Agreement of Limited Partnership
of the Partnership, as amended (the "Partnership Agreement")) not owned by the
Company or any of its affiliates will be converted into the right to receive the
Merger Consideration (as hereinafter defined). The Company, as the holder of a
.99% managing general partnership interest in the Partnership and 64,163,885 LP
Units, and Meridian Offshore Acquisition Company, as the holder of a .01%
special general partnership interest in the Partnership, have both executed a
written consent approving the Merger.
Now, therefore, the Partnership and the Company hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the relevant provisions of the Delaware General
Corporation Law (the "DGCL") and the Delaware Revised Uniform Limited
Partnership Act (the "DRULPA"), the Partnership shall be merged with and into
the Company as soon as practicable following the satisfaction or waiver, if
permissible, of the conditions set forth in Article III. Following the Merger,
the Company shall continue as the surviving corporation (the "Surviving
Corporation") and shall continue its existence under the laws of the State of
Delaware, and the separate existence of the Partnership shall cease. At the
election of the Company, any direct or indirect wholly-owned subsidiary of
Meridian Oil Holding Inc. ("Parent") may be substituted for the Company as a
constituent party in the Merger.
SECTION 1.02 Effective Time. As soon as practicable following the
satisfaction or waiver of the conditions set forth in Article III, the Merger
shall be consummated by filing with the Secretary of State of the State of
Delaware a certificate of merger or other appropriate documents (in any case,
the "Certificate of Merger") in accordance with the DGCL and the DRULPA. The
Merger shall become effective at such time as the Certificate of Merger is duly
filed, or at such other time as the Partnership and the Company shall specify in
the Certificate of Merger (the time the Merger becomes effective being the
"Effective Time").
SECTION 1.03 Effects of the Merger. The Merger shall have the effects set
forth in Section 259 of the DGCL.
SECTION 1.04 Certificate of Incorporation and By-Laws. The Certificate of
Incorporation and the By-Laws of the Company shall be the certificate of
incorporation and by-laws of the Surviving Corporation until thereafter changed
or amended as provided therein or by applicable law.
SECTION 1.05 Directors and Officers. The directors and officers of the
Company immediately prior to the Effective Time shall be the directors and
officers of the Surviving Corporation until the earlier of their resignation or
removal or until their respective successors are duly elected and qualified.
<PAGE> 4
SECTION 1.06 Conversion of Units. At the Effective Time, by virtue of the
Merger and without any action on the part of the Partnership, the Company or the
holders of any of the following securities:
(a) each partnership interest in the Partnership held by the Company
or any affiliate of the Company shall be cancelled and retired and shall
cease to exist, and no payment or consideration shall be made with respect
thereto;
(b) each issued and outstanding LP Unit, other than LP Units included
in the partnership interests referred to in paragraph (a) above shall be
converted into the right to receive from the Surviving Corporation an
amount in cash, without interest, equal to $4.485 per LP Unit (the "Merger
Consideration"). At the Effective Time, all such LP Units shall cease to be
outstanding and shall automatically be canceled and retired and shall cease
to exist, and each holder of a certificate representing any such LP Unit
shall cease to have any rights with respect thereto, except the right to
receive the Merger Consideration, without interest; and
(c) each issued and outstanding share of capital stock of the Company
shall remain outstanding and shall represent one fully paid and
nonassessable share of common stock, par value $.01, of the Surviving
Corporation.
SECTION 1.07 Closing. The closing of the Merger (the "Closing") will take
place at 10:00 a.m. on a date to be specified by the parties, which shall be no
later than the second business day after satisfaction or waiver of the
conditions set forth in Article III, at the offices of Fried, Frank, Harris,
Shriver & Jacobson, One New York Plaza, New York, NY 10004, unless another date
or place is agreed to in writing by the parties hereto.
ARTICLE II
EXCHANGE OF UNITS
SECTION 2.01 Exchange of Certificates. (a) Prior to the Effective Time, the
Company shall appoint a bank or trust company to act as disbursing agent (the
"Disbursing Agent") for the payment of Merger Consideration upon surrender of
certificates representing the LP Units. Parent will enter into a disbursing
agent agreement with the Disbursing Agent, in form and substance reasonably
acceptable to the Company, and shall deposit or cause to be deposited with the
Disbursing Agent in trust for the benefit of the holders of LP Units cash in an
aggregate amount necessary to make the payments pursuant to Section 1.06 to
holders of LP Units (such amounts being hereinafter referred to as the "Exchange
Fund"). The Disbursing Agent shall, pursuant to irrevocable instructions, make
the payments provided for in the preceding sentence out of the Exchange Fund.
The Disbursing Agent shall invest portions of the Exchange Fund as the Company
directs, provided that such investments shall be in obligations of or guaranteed
by the United States of America, in commercial paper obligations receiving the
highest rating from either Moody's Investors Service, Inc. or Standard & Poor's
Corporation, or in certificates of deposit, bank repurchase agreements or
banker's acceptances of commercial banks with capital exceeding $100 million.
The Exchange Fund shall not be used for any other purpose, except as provided in
this Agreement.
(b) Promptly after the Effective Time, the Surviving Corporation shall
cause the Disbursing Agent to mail to each person who was a record holder as of
the Effective Time of an outstanding certificate or certificates which
immediately prior to the Effective Time represented Depositary Units (as defined
in the Partnership Agreement) representing LP Units (the "Certificates"), and
whose LP Units were converted into the right to receive Merger Consideration
pursuant to Section 1.06, a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon proper delivery of the Certificates to the Disbursing
Agent) and instructions for use in effecting the surrender of the Certificate in
exchange for payment of the Merger Consideration. Upon surrender to the
Disbursing Agent of a Certificate, together with such letter of transmittal duly
executed and such other documents as may be reasonably required by the
Disbursing Agent, the holder of such Certificate shall be paid in exchange
therefor cash in an amount equal to the product of the number of LP Units
represented by such Certificate multiplied by the Merger Consideration, and such
Certificate shall forthwith be cancelled. No interest will be paid or accrued on
the cash payable upon the surrender of the Certificates. If payment is to be
made to a person other
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<PAGE> 5
than the person in whose name the Certificate surrendered is registered, it
shall be a condition of payment that the Certificate so surrendered be properly
endorsed or otherwise be in proper form for transfer and that the person
requesting such payment pay any transfer or other taxes required by reason of
the payment to a person other than the registered holder of the Certificate
surrendered or establish to the satisfaction of the Surviving Corporation that
such tax has been paid or is not applicable. Until surrendered in accordance
with the provisions of this Section 2.01, each Certificate (other than
Certificates representing LP Units owned by the Company or any affiliate of the
Company shall represent for all purposes only the right to receive the Merger
Consideration in cash multiplied by the number of LP Units represented by such
Certificate, without any interest thereon.
(c) At and after the Effective Time, there shall be no registration of
transfers of LP Units and the Partnership shall instruct the depositary for the
Depositary Units not to register transfers of the Depositary Units which were
outstanding immediately prior to the Effective Time. From and after the
Effective Time, the holders of LP Units outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to such LP Units
except as otherwise provided in this Agreement or by applicable law. All cash
paid upon the surrender of Certificates in accordance with the terms of this
Article II shall be deemed to have been paid in full satisfaction of all rights
pertaining to the LP Units previously represented by such Certificates. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, such Certificates shall be cancelled and exchanged
for cash as provided in this Article II.
(d) At any time more than one year after the Effective Time, the Surviving
Corporation shall be entitled to require the Disbursing Agent to deliver to it
any funds which had been made available to the Disbursing Agent and not
disbursed in exchange for Certificates (including, without limitation, all
interest and other income received by the Disbursing Agent in respect of all
such funds). Thereafter, holders of LP Units shall look only to the Surviving
Corporation (subject to abandoned property, escheat and other similar laws) as
general creditors thereof with respect to any Merger Consideration that may be
payable, without interest, upon due surrender of the Certificates held by them.
Notwithstanding the foregoing, neither the Surviving Corporation nor the
Disbursing Agent shall be liable to any holder of an LP Unit for any Merger
Consideration delivered in respect of such LP Unit to a public official pursuant
to any abandoned property, escheat or other similar law.
SECTION 2.02 Distribution. Nothing in this Agreement shall be construed as
affecting the rights of holders of LP Units to receive the distribution of $.13
per LP Unit to be paid on June 7, 1994 to holders of record of LP Units as of
May 13, 1994.
ARTICLE III
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 3.01 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligations of each party to effect the Merger are subject to the
satisfaction or waiver, where permissible, prior to the Effective Time, of the
following conditions:
(a) no statute, rule, regulation, executive order, decree, injunction
or other order (whether temporary, preliminary or permanent), shall have
been enacted, entered, promulgated or enforced by any court or governmental
authority which is in effect and has the effect of prohibiting the
consummation of the Merger; provided that each of the parties shall have
used its best efforts to prevent the entry of any injunction or other order
and to appeal as promptly as possible any injunction or other order that
may be entered; and
(b) the waiting period (and any extension thereof) applicable to the
consummation of the Merger under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, if any, shall have expired or been
terminated and a 20-day period shall have elapsed from the date of mailing
to holders of LP Units of an information statement with respect to the
Merger.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
SECTION 4.02 Entire Agreement; Assignment. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Neither this Agreement nor any right, interest or obligation under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise without the prior written consent of the other parties.
SECTION 4.03 Validity. In the event any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby.
SECTION 4.04 Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Delaware
regardless of the laws that might otherwise govern under principles of conflicts
of laws applicable thereto.
SECTION 4.05 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 4.06 Parties in Interest. Nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
SECTION 4.07 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement, and shall become effective when one
or more counterparts have been signed by each of the parties and delivered to
the other parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its respective officers thereunto duly authorized, all
as of the day and year first above written.
DIAMOND SHAMROCK OFFSHORE
PARTNERS LIMITED PARTNERSHIP
By Meridian Offshore Company,
its managing general partner
By /s/ Randolph P. Mundt
Name: Randolph P. Mundt
Title: Senior Vice President
MERIDIAN OFFSHORE COMPANY
By /s/ Gerald J. Schissler
Name: Gerald J. Schissler
Title: Executive Vice President
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