1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER OF
OCEAN ENERGY, INC. (TEXAS) AND
OCEAN ENERGY, INC. (DELAWARE)
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of March
30, 2001, is made and entered into by and between Ocean Energy, Inc., a Texas
corporation ("OEI-Texas"), and Ocean Energy, Inc., a Delaware corporation
("OEI-Delaware"), which corporations are sometimes referred to herein as the
"Constituent Corporations."
WITNESSETH
WHEREAS, OEI-Texas is a corporation organized and existing under the
laws of the State of Texas; and
WHEREAS, OEI-Delaware is a wholly-owned subsidiary corporation of
OEI-Texas; and
WHEREAS, the respective Boards of Directors of OEI-Texas and
OEI-Delaware have determined that it is desirable to merge OEI-Texas into
OEI-Delaware (the "Merger"); and
WHEREAS, the parties intend by this Agreement to effect a
reorganization under Section 368 of the Internal Revenue Code of 1986, as
amended;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that
OEI-Texas shall be merged into OEI-Delaware upon the terms and conditions set
forth below.
ARTICLE I
MERGER
On the effective date of the Merger (the "Effective Date") as provided
herein, OEI-Texas shall be merged into OEI-Delaware, the separate existence of
OEI-Texas shall cease and OEI-Delaware (hereinafter sometimes referred to as the
"Surviving Corporation") shall continue to exist under the name of Ocean Energy,
Inc. by virtue of, and shall be governed by, the laws of the State of Delaware.
The address of the registered office of the Surviving Corporation in the State
of Delaware will be Corporation Trust Center, 0000 Xxxxxx Xxxxxx, in the County
of New Castle, in the City of Xxxxxxxxxx, Xxxxxxxx 00000.
ARTICLE II
CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
The name of the Surviving Corporation shall be "Ocean Energy, Inc." The
Certificate of Incorporation of the Surviving Corporation as in effect on the
date hereof shall be the Certificate of Incorporation of OEI-Delaware (the
"Delaware Charter") without change unless and until amended in accordance with
applicable law.
1
2
ARTICLE III
BYLAWS OF THE SURVIVING CORPORATION
The Bylaws of the Surviving Corporation as in effect on the date hereof
shall be the Bylaws of OEI-Delaware (the "Delaware Bylaws") without change
unless and until amended in accordance with applicable law.
ARTICLE IV
EFFECT OF MERGER ON STOCK OF CONSTITUENT CORPORATIONS
4.1. On the Effective Date, each outstanding share of common stock of
OEI-Texas, par value $.10 per share (the "Common Stock"), shall be converted
into one share of OEI-Delaware common stock, par value $.10 per share (the
"Delaware Common Stock"), and each outstanding share of Delaware Common Stock
held by OEI-Texas shall be retired and canceled. The shares of Delaware Common
Stock shall be identical to the shares of Common Stock in all other aspects.
4.2 On the Effective Date, each outstanding share of preferred stock of
OEI-Texas, par value $1.00 per share (the "Preferred Stock"), shall be converted
into one share of OEI-Delaware preferred stock, par value $1.00 per share (the
"Delaware Preferred Stock"), and each outstanding share of Delaware Preferred
Stock held by OEI-Texas shall be retired and canceled. The shares of Delaware
Preferred Stock shall have substantially equivalent rights, preferences and
limitations as the Preferred Stock.
4.3 On the Effective Date, each share of Common Stock held in the
Company's treasury shall be converted into one treasury share of OEI-Delaware
Common Stock.
4.4. All options and rights to acquire the Common Stock under all
outstanding options, warrants or rights outstanding on the Effective Date will
automatically be converted into equivalent options and other rights to purchase
the same number of shares of Delaware Common Stock.
4.5. After the Effective Date, certificates representing shares of the
Common Stock and Preferred Stock will represent shares of Delaware Common Stock
and Delaware Preferred Stock, respectively, and upon surrender of the same to
the transfer agent for OEI-Delaware, the holder thereof shall be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares of Delaware Common Stock or Delaware Preferred Stock, as the
case may be, into which such shares of Common Stock or Preferred Stock shall
have been converted pursuant to Article 4.1 and 4.2, respectively, of this
Agreement.
ARTICLE V
CORPORATE EXISTENCE, POWERS AND LIABILITIES
OF THE SURVIVING CORPORATION
5.1. On the Effective Date, the separate existence of OEI-Texas shall
cease. OEI-Texas shall be merged with and into OEI-Delaware, the Surviving
Corporation, in accordance
2
3
with the provisions of this Agreement. Thereafter, OEI-Delaware shall possess
all the rights, privileges, powers and franchises of a public as well as of a
private nature, and shall be subject to all the restrictions, disabilities and
duties of each of the parties to this Agreement; all singular rights,
privileges, powers and franchises of OEI-Texas and OEI-Delaware, and all
property, real, personal and mixed and all debts due to each of them on whatever
account, shall be vested in OEI-Delaware; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter as
effectually the property of OEI-Delaware, the Surviving Corporation, as they
were of the respective constituent entities, and the title to any real estate,
whether by deed or otherwise, vested in OEI-Texas and OEI-Delaware, or either of
them, shall not revert or be in any way impaired by reason of the Merger, but
all rights of creditors and all liens upon the property of the parties hereto,
shall be preserved unimpaired, and all debts, liabilities and duties of
OEI-Texas, shall thenceforth attach to OEI-Delaware, and may be enforced against
it to the same extent as if said debts, liabilities and duties had been incurred
or contracted by it.
5.2. OEI-Texas agrees that it will execute and deliver, or cause to be
executed and delivered, all such deeds and other instruments and will take or
cause to be taken such further or other action as the Surviving Corporation may
deem necessary in order to vest in and confirm to the Surviving Corporation
title to and possession of all the property, rights, privileges, immunities,
powers, purposes and franchises, and all and every other interest of OEI-Texas
and otherwise to carry out the intent and purposes of this Agreement.
ARTICLE VI
OFFICERS AND DIRECTORS OF SURVIVING CORPORATION
6.1. Upon the Effective Date, the officers and directors of OEI-Texas
shall become the officers and directors of OEI-Delaware, and such persons shall
hold office in accordance with the charter documents of the Surviving
Corporation until their respective successors shall have been appointed or
elected, and, in case of directors, in the respective classes to which such
directors are assigned.
6.2. If upon the Effective Date, a vacancy shall exist in the Board of
Directors of the Surviving Corporation, such vacancy may be filled in the manner
provided by the charter documents of the Surviving Corporation.
ARTICLE VII
APPROVAL BY SHAREHOLDERS, EFFECTIVE DATE,
CONDUCT OF BUSINESS PRIOR TO EFFECTIVE DATE
7.1. Soon after the approval of this Agreement by the requisite number
of shareholders of OEI-Texas, the respective Boards of Directors of OEI-Texas
and OEI-Delaware will cause their duly authorized officers to make and execute
Articles of Merger and a Certificate of Ownership and Merger or other applicable
certificates or documentation effecting this Agreement and shall cause the same
to be filed with the Secretaries of State of the States of Texas and Delaware,
respectively, in accordance with the Texas Business Corporation Act (the "TBCA")
and the Delaware General Corporation Law (the "DGCL"). The Effective Date shall
3
4
be the date on which the Merger becomes effective under the TBCA or the date on
which the Merger becomes effective under the DGCL, whichever occurs later.
7.2. The Boards of Directors of OEI-Texas and OEI-Delaware may amend
this Agreement and the Delaware Charter at any time prior to the Effective Date,
provided that an amendment made subsequent to the approval of the Merger by the
shareholders of OEI-Texas may not (i) change the assessment or type of shares to
be received in exchange for or on conversion of the shares of the Common Stock
or Preferred Stock; or (ii) change any term of the terms and conditions of this
Agreement if such change would adversely affect the holders of the Common Stock
or Preferred Stock.
ARTICLE VIII
TERMINATION OF MERGER
This Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Date, whether before or after shareholder approval of
this Agreement, by the consent of the Board of Directors of OEI-Texas and
OEI-Delaware.
ARTICLE IX
MISCELLANEOUS
9.1. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, except to the extent the laws
of Delaware are required to be applied.
9.2. Agreement. An executed copy of this Agreement will be on file at
the principal place of business of the Surviving Corporation at 0000 Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, and, upon request and without cost, a copy
thereof will be furnished to any shareholder.
9.3. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
4
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
OCEAN ENERGY, INC.,
a Texas corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
OCEAN ENERGY, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
5