-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, C4Ca4BBKHpAiM5ZSEcZszngO3L7rEAucUtbLrXzm10Y+DIto/Y0MZxw1JQmovMfL 9mVMuxs867RhaF3dWqIK/A== 0000950129-94-000368.txt : 19940509 0000950129-94-000368.hdr.sgml : 19940509 ACCESSION NUMBER: 0000950129-94-000368 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19940506 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DIAMOND SHAMROCK OFFSHORE PARTNERS LTD PARTNERSHIP CENTRAL INDEX KEY: 0000773350 STANDARD INDUSTRIAL CLASSIFICATION: 1311 IRS NUMBER: 752058990 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-36518 FILM NUMBER: 94526533 BUSINESS ADDRESS: STREET 1: 717 NORTH HARWOOD STREET CITY: DALLAS STATE: TX ZIP: 75201-6594 BUSINESS PHONE: 2149532000 FORMER COMPANY: FORMER CONFORMED NAME: DIAMOND SHAMROCK OFFSHORE PARTNERS LTD DATE OF NAME CHANGE: 19850826 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BURLINGTON RESOURCES INC CENTRAL INDEX KEY: 0000833320 STANDARD INDUSTRIAL CLASSIFICATION: 1311 IRS NUMBER: 911413284 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 5051 WESTHEIMER STREET 2: SUITE 1400 CITY: HOUSTON STATE: TX ZIP: 77056 BUSINESS PHONE: (713) 831-1600 MAIL ADDRESS: STREET 1: 999 THIRD AVENUE CITY: SEATTLE STATE: WA ZIP: 98104-4097 SC 13D 1 DIAMOND SHAMROCK OFFSHORE PARTNERS L.P. 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). 2 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 3 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 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. 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, 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. 7 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 8 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 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 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. EX-1 2 EX TO SC 13D OF DIAMOND SHAMROCK OFFSHORE 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 2 TABLE OF CONTENTS 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
(i) 3 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
(ii) 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 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- 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- 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. -4- 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 -5- 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, -6- 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. -7- 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) -8- 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 -9- 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 -10- 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: -11- 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). -12- 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 -13- 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 -14- EX-2 3 EX TO SC 13D OF DIAMOND SHAMROCK OFFSHORE 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER DATED AS OF APRIL 28, 1994 BETWEEN DIAMOND SHAMROCK OFFSHORE PARTNERS LIMITED PARTNERSHIP AND MERIDIAN OFFSHORE COMPANY - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 TABLE OF CONTENTS 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
(i) 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. 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 -2- 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. -3- 6 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 -4- -----END PRIVACY-ENHANCED MESSAGE-----