Exhibit 2.1
AGREEMENT AND PLAN OF
MERGER
This AGREEMENT AND PLAN OF MERGER,
dated as of October 24, 2006 (this “ Agreement
”), is among Susser Holdings Corporation, a Delaware
corporation (“ Parent Corp .” ), Susser Holdings
Merger LLC, a Delaware limited liability company and a direct,
wholly-owned subsidiary of Parent Corp. (“ Merger LLC
”), and Stripes Holdings LLC, a Delaware limited liability
company (the “ Company ”).
WHEREAS, Parent Corp. intends to
undertake an initial public offering of its equity interests at a
time when it is the sole owner of all of the outstanding interests
in the Company, and in connection therewith, the holders of the
membership interests in the Company desire to contribute or
otherwise transfer their membership interests in the Company to
Parent Corp. (the “ Contribution ”), in order
that the Company may become a direct wholly-owned subsidiary of
Parent Corp. and Parent Corp. may effectuate the initial public
offering through an offering of its common stock to the public (the
“ Offering ”);
WHEREAS, in order to effect the
Contribution, the parties hereto desire that Merger LLC be merged
with and into the Company (the “ Merger ”), with
the Company as the surviving company in the Merger, and all of the
Class A Units of the Company (the “ Class A
Units ”) and Class B Units of the Company (the “
Class B Units ” and collectively with the
Class A Units, the “ Company Membership Units
”) being cancelled in the Merger and the holders of such
Company Membership Units receiving common stock of Parent Corp. in
the Merger;
WHEREAS, the Board of Directors of
Parent Corp. has approved and declared advisable this Agreement and
the Merger, on the terms and subject to the conditions provided for
in this Agreement;
WHEREAS, each of Parent Corp., as
the sole member of Merger LLC, and the members of the Company have
approved and declared advisable this Agreement and the Merger, on
the terms and subject to the conditions provided for in this
Agreement (the “ Merger LLC Member Approval ”
and the “ Company Member Approval ”,
respectively);
WHEREAS, immediately upon and
contingent upon the consummation of the Merger, pursuant to and as
described in that certain Agreement and Plan of Merger (the “
Secondary Merger Agreement ”), dated as of
October 24, 2006, among Parent Corp. and Stripes Investment
Corp., a Delaware corporation (“ Blocker Corp.
”), Blocker Corp. will merge with and into Parent Corp., with
Parent Corp. as the surviving corporation in the merger (the
“ Secondary Merger ”); and
WHEREAS, it is intended that this
Merger, together with and as part of a larger transaction that
includes the Secondary Merger, for federal income tax purposes
shall qualify as a transaction described in Section 351 of the
Internal Revenue Code of 1986.
NOW, THEREFORE, in consideration of
the representations, warranties, covenants and agreements contained
in this Agreement, and intending to be legally bound hereby, Parent
Corp., Merger LLC and the Company hereby agree as
follows:
ARTICLE I
The Merger
Section 1.1.
The Merger . Upon the terms
and subject to the conditions set forth in this Agreement, and in
accordance with the Limited Liability Company Act of the State of
Delaware (the “ LLCA ”), at the Effective Time
(as defined below) Merger LLC shall be merged with and into the
Company, and the separate existence of Merger LLC shall thereupon
cease, and the Company shall be the surviving company in the Merger
(the “ Surviving Company ”).
Section 1.2.
Closing . The closing of the
Merger (the “ Closing ”) shall take place at
10:00 a.m. (Dallas, Texas time) on the date of the satisfaction or
waiver of the conditions to closing set forth in Article V
(the “ Closing Date ”), at the offices of Weil,
Gotshal & Manges LLP, 200 Crescent Court, Suite 300,
Dallas, Texas, 75201, unless another time, date or place is agreed
to by the parties hereto.
Section 1.3.
Effective Time . Subject to
the provisions of this Agreement, as soon as practicable on the
Closing Date the parties shall file with the Secretary of State of
the State of Delaware a certificate of merger, executed in
accordance with the relevant provisions of the LLCA (the “
Certificate of Merger ”). The Merger shall become
effective upon the filing of the Certificate of Merger or at such
later time as is agreed to by the parties hereto and specified in
the Certificate of Merger (the time at which the Merger becomes
effective is herein referred to as the “ Effective
Time ”).
Section 1.4.
Effects of the Merger . The
Merger shall have the effects set forth in the LLCA. Without
limiting the generality of the foregoing, and subject thereto, at
the Effective Time, all the properties, rights, privileges, powers
and franchises of the Company and Merger LLC shall vest in the
Surviving Company, and all debts, liabilities and duties of the
Company and Merger LLC shall become the debts, liabilities and
duties of the Surviving Company.
Section 1.5.
Certificate of Formation and
Limited Liability Company Operating Agreement of the Surviving
Company .
(a) The Certificate of Formation of
the Company in effect immediately prior to the Effective Time, as
may be amended by the Certificate of Merger, shall be the
certificate of formation of the Surviving Company until thereafter
amended as provided therein or by applicable law.
(b) At the Effective Time, the
Second Amended and Restated Limited Liability Company Agreement of
the Company attached hereto as Exhibit A shall be the
limited liability company agreement of the Surviving Company until
thereafter amended as provided therein or by applicable
law.
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Section 1.6.
Directors and Officers of the
Surviving Company .
(a) The directors of the Company
immediately prior to the Effective Time shall be the directors of
the Surviving Company immediately following the Effective Time, to
serve as such until their respective successors are duly elected or
appointed and qualified or their earlier death, resignation or
removal in accordance with the certificate of formation and limited
liability company operating agreement of the Surviving
Company.
(b) The officers of the Company
immediately prior to the Effective Time shall be the officers of
the Surviving Company until their respective successors are duly
appointed and qualified or their earlier death, resignation or
removal in accordance with the certificate of formation and limited
liability company operating agreement of the Surviving
Company.
ARTICLE II
Effect of the Merger on the
Capital Stock of the
Constituent
Entities
Section 2.1.
Effect on Capital Stock . At
the Effective Time, by virtue of the Merger and without any action
on the part of the holder of any Company Membership Units or any
membership units of Merger LLC:
(a) Conversion of Membership
Units of Merger LLC . All of the issued and outstanding common
membership units of Merger LLC (“ Merger LLC Units
”) shall together be converted into and become an aggregate
of 1,000 validly issued, fully paid and nonassessable common units
of the Company.
(b) Conversion of Class A
Units of the Company . Each Class A Unit of the Company
issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive 0.718339 validly
issued, fully paid and nonassessable shares of common stock (the
“ Class A Exchange Ratio ”), par value $0.01 per
share, of Parent Corp. (“ Parent Company Common Stock
”). As of the Effective Time, all such Class A Units
shall no longer be outstanding and shall automatically be canceled
and shall cease to exist, and each holder of a certificate which
immediately prior to the Effective Time represented any such
Class A Units shall cease to have any rights with respect
thereto, except the right to receive the Parent Company Common
Stock and cash in lieu of any fractional shares of Parent Company
Common Stock to which such holder is entitled pursuant to this
Section 2.1(b), in each case to be issued or paid in
consideration therefor upon surrender of such certificate
representing Class A Units.
(c) Conversion of Class B Units
of the Company . Each Class B Unit of the Company issued and
outstanding immediately prior to the Effective Time shall be
converted into the right to receive 0.130104 validly issued, fully
paid and nonassessable
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shares of Parent Company Common Stock. As of the
Effective Time, all such Class B Units shall no longer be
outstanding and shall automatically be canceled and shall cease to
exist, and each holder of a certificate which immediately prior to
the Effective Time represented any such Class B Units shall cease
to have any rights with respect thereto, except the right to
receive the Parent Company Common Stock and cash in lieu of any
fractional shares of Parent Company Common Stock to which such
holder is entitled pursuant to this Section 2.1(c), in each
case to be issued or paid in consideration therefor upon surrender
of such certificate representing Class B Units.
(d) Company Options . Before
the Closing Date, the Board of Directors of the Company (or, if
appropriate, any committee of the Board of Directors of Company
administering the Stripes Holdings LLC Unit Option Plan) shall
adopt such resolutions or take such other actions as may be
required to effect the following:
(i) adjust the terms of all
outstanding options to acquire Class A Units (each, a
“Company Option“) granted under the Stripes Holdings
LLC Unit Option Plan, as may have been amended from time to time
(the “Company Option Plan“), whether vested or
unvested, as necessary to provide that, at the Effective Time, each
Company Option outstanding immediately prior to the Effective Time
shall be amended and converted into options to acquire, on the same
terms and conditions as were applicable under the corresponding
Company Option (taking into account the terms of the Company Option
Plan, the individual award agreement pursuant to which the Company
Option was granted and any individual agreement providing for
vesting of such Company Option upon a change in control of the
Company), 0.718339 shares of Parent Company Common Stock for each
Class A Unit for which such Company Option was exercisable, at
a price per share equal to the exercise price per Class A Unit
under the Company Option Plan, divided by the Class A Exchange
Ratio (rounded to the nearest cent); and
(ii) make such other changes to the
Company Option Plan as Parent Corp. and the Company may agree are
appropriate to give effect to the Merger.
(e) Parent Company Common
Stock . All shares of Parent Company Common Stock outstanding
immediately prior to the Merger and owned by the Company shall be
surrendered and cancelled and no longer remain outstanding for any
purpose.
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Section 2.2.
Stock Certificates in Parent
Corp. Upon presentation by a holder of certificates
representing the Company Membership Units for exchange, the holder
of such certificate shall be entitled to receive in exchange
therefor (A) a certificate representing that number of whole
shares of Parent Company Common Stock that such holder has the
right to receive pursuant to the provisions of
Section 2.1 , and (B) cash in lieu of any
fractional shares of Parent Company Common Stock to which such
holder is entitled pursuant to Section 2.1(b) or 2.1(c), and
the certificate so surrendered shall forthwith be
canceled.
Section 2.3.
No Further Ownership Rights in
Company Membership Units . From and after the Effective Time,
the shares of Parent Company Common Stock issued and paid as merger
consideration to holders of Company Membership Units in accordance
with this Agreement shall be deemed to have been issued and paid in
full satisfaction of all rights pertaining to the Company
Membership Units, and the holders of such Company Membership Units
shall have no further rights with respect to such interests except
as provided herein or by applicable law. As a result of the effects
described in this Article II, as of the Effective Time Parent
Company will be the sole member or owner of any unit or membership
interest in the Company (including any option to assume any such
interest).
ARTICLE III
Representations and Warranties of
the Company
The Company represents and warrants
to Parent Corp. and Merger LLC as follows:
Section 3.1.
Organization, Standing and
Corporate Power .
(a) The Company is a limited
liability company duly organized, validly existing and in good
standing under the laws of the state of Delaware and has all
requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby.
Section 3.2.
Authority; Noncontravention;
Voting Requirements .
(a) The Company has all necessary
power and authority to execute and deliver this Agreement and,
subject to obtaining the Company Member Approval, to perform its
obligations hereunder and to consummate the Merger. The execution,
delivery and performance by the Company of this Agreement, and the
consummation of the Merger, have been duly authorized and approved
by its Board of Directors, and except for obtaining the Company
Member Approval for the adoption of this Agreement, no other
corporate action on the part of the Company is necessary to
authorize the execution, delivery and performance by the Company of
this Agreement and the consummation by it of the Merger. This
Agreement has been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery hereof by the
other parties hereto, constitutes a legal, valid and binding
obligation of the
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Company, enforceable against the Company in
accordance with its terms, except that such enforceability
(i) may be limited by bankruptcy, insolvency, fraudulent
transfer, Contribution, moratorium and other similar laws of
general application affecting or relating to the enforcement of
creditors’ rights generally and (ii) is subject to
general principles of equity, whether considered in a proceeding at
law or in equity (the “ Bankruptcy and Equity
Exception ”).
(b) Neither the execution and
delivery of this Agreement by the Company nor the consummation by
the Company of the Merger, nor compliance by the Company with any
of the terms or provisions hereof, will (i) conflict with or
violate any provision of the Certificate of Formation or Amended
and Restated Limited Liability Company Agreement of the Company or
(ii) violate any material law, judgment, writ or injunction of
any governmental authority applicable to the Company or any of its
material properties or assets. Except for the Company Member
Approval, no consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification
to, any person or governmental body is required on the part of the
Company in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated
hereby.
Section 3.3.
Capitalization of the Company
.
(a) The Company has authorized the
issuance of 15,914,639 membership units, of which
(i) 14,400,000 units are designated as Class A Units and
(ii) 1,514,639 units are designated as Class B Units. As of
the date of this Agreement, (i) 12,849,660 Class A Units
were issued and outstanding, (ii) 1,440,796 Class A Units
were reserved for issuance under the Stripes Holdings LLC Unit
Option Plan in accordance with its terms, and (iii) 912, 823
Class B Units of the Company were issued and outstanding. All of
the issued and outstanding Company Membership Units of the Company
are, and all such Company Membership Units which may be issued will
be, duly authorized and validly issued and are fully paid,
nonassessable and not subject to preemptive rights.
(b) Except as set forth in
Section 3.3(a) above, the Company has no authorized,
issued and outstanding or reserved membership units and there is no
existing option, warrant, call, right, or contract of any character
to which the Company is a party requiring, and there are no
securities of the Company outstanding which upon conversion or
exchange would require, the issuance of any Company Membership
Units or other securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase Company
Membership Units. Except as set forth in the Amended and Restated
Limited Liability Company Operating Agreement of the Company, the
Company is not a party to any voting trust or other contract with
respect to the voting, redemption, sale, transfer or other
disposition of the Company Membership Units.
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ARTICLE IV
Representations and Warranties of
Merger LLC and Parent Corp.
Merger LLC and Parent Corp., jointly
and severally, represent and warrant to the Company as
follows:
Section 4.1.
Organization, Standing and
Corporate Power .
(a) Merger LLC is a limited
liability company duly organized, validly existing and in good
standing under the laws of the state of Delaware and has all
requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated
hereby.
(b) Parent Corp. is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
Section 4.2.
Merger LLC Authority;
Noncontravention .
(a) Merger LLC has all necessary
power and authority to execute and deliver this Agreement and,
subject to obtaining the Merger LLC Member Approval, to perform its
obligations hereunder and to consummate the Merger. The execution,
delivery and performance by Merger LLC of this Agreement, and the
consummation of the Merger, have been duly authorized and approved
by its sole member in the Merger LLC Member Approval, and no other
action on the part of Merger LLC is necessary to authorize the
execution, delivery and performance by Merger LLC of this Agreement
and the consummation by it of the Merger. This Agreement has been
duly executed and delivered by Merger LLC and, assuming due
authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of Merger
LLC, enforceable against Merger LLC in accordance with its terms,
except that such enforceability may be limited by the Bankruptcy
and Equity Exception.
(b) Neither the execution and
delivery of this Agreement by Merger LLC nor the consummation by
Merger LLC of the Merger, nor compliance by Merger LLC with any of
the terms or provisions hereof, will (i) conflict with or
violate any provision of the Certificate of Formation or Limited
Liability Company Agreement of Merger LLC or (ii) violate any
material law, judgment, writ or injunction of any governmental
authority applicable to Merger LLC or any of its material
properties or assets. Except for the Merger LLC Member Approval, no
consent, waiver, approval, order, permit or authorization of, or
declaration or filing with, or notification to, any person or
governmental body is required on the part of Merger LLC in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
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Section 4.3.
Parent Corp. Authority;
Noncontravention .
(a) Parent Corp. has all necessary
corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Parent Corp. of this
Agreement have been duly authorized and approved by its board of
directors and no other action on the part of the board of directors
of Parent Corp. is necessary to authorize the execution, delivery
and performance by Parent Corp. of this Agreement and the
consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Parent Corp. and,
assuming due authorization, execution and delivery hereof by the
other parties hereto, constitutes a legal, valid and binding
obligation of Parent Corp., enforceable against Parent Corp. in
accordance with its terms, except that such enforceability may be
limited by the Bankruptcy and Equity Exception,
(b) Neither the execution and
delivery of this Agreement by Parent Corp. nor compliance by Parent
Corp. with any of the terms or provisions hereof, will
(i) conflict with or violate any provision of the Amended and
Restated Certificate of Incorporation or Amended and Restated
Bylaws of Parent Corp. or (ii) violate any material law,
judgment, writ or injunction of any governmental authority
applicable to Parent Corp. or any of its material properties or
assets. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification
to, any person or governmental body is required on the part of
Parent Corp. in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated
hereby.
Section 4.4.
Capitalization of Merger LLC
.
(a) The authorized capital stock of
Merger LLC consists of 1,000 common membership units. As of the
date hereof, there are, and as of the Closing Date, there will be,
1,000 Merger LLC Units issued and outstanding, all of which are
owned of record and beneficially by Parent Corp., and no Merger LLC
Units are held by Merger LLC as treasury stock. All of the issued
and outstanding Merger LLC Units were duly authorized for issuance
and are validly issued, fully paid and non-assessable.
(b) Except as set forth in
Section 4.4(a) above, Merger LLC has no authorized,
issued and outstanding or reserved membership units and there is no
existing option, warrant, call, right, or contract of any character
to which Merger LLC is a party requiring, and there are no
securities of Merger LLC outstanding which upon conversion or
exchange would require, the issuance of any Merger LLC Units or
other securities convertible into, exchangeable for or evidencing
the right to subscribe for or purchase Merger LLC Units. Merger LLC
is not a party to any voting trust or other contract with respect
to the voting, redemption, sale, transfer or other disposition of
the Merger LLC Units.
Section 4.5.
Issuance of Parent Corp. Common
Stock; Capitalization of the Parent Corp. The Parent Company
Common Stock to be issued as a result of the Merger has been duly
authorized and, when issued as contemplated by
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this Agreement, will be validly issued, fully
paid and nonassessable. After giving effect to the Contribution and
the Offering, the capitalization of the Parent Corp. will be as set
forth in the prospectus filed by the Parent Corp. with the
Securities and Exchange Commission with respect to the
Offering.
Section 4.6.
Operations of Merger LLC .
Merger LLC was formed solely for the purpose of merging with and
into the Company. Merger LLC has engaged in no business other than
as set forth in this Section 4.6 , has no liabilities,
and has conducted its operations solely as contemplated
hereby.
ARTICLE V
Conditions
Precedent
Section 5.1.
Conditions to Each Party’s
Obligation to Effect the Merger . The respective obligations of
each party hereto to effect the Merger shall be subject to the
satisfaction on or prior to the Closing Date of the following
conditions:
(a) Company Member Approval .
The Company Member Approval shall have been obtained in accordance
with applicable law and the Certificate of Formation and Amended
and Restated Limited Liability Company Agreement of the
Company.
(b) Merger LLC Member
Approval . The Merger LLC Member Approval shall have been
obtained in accordance with applicable law and the Certificate of
Formation and Liability Company Agreement of Merger LLC.
(c) Secondary Merger Fully
Executed . The Secondary Merger Agreement shall have been fully
executed and no condition to the affectation of the Secondary
merger will remain unsatisfied (other than affectation of the
Merger).
ARTICLE VI
(a) Survival of Representations
and Warranties . All representations and warranties contained
in this Agreement shall terminate as of the Merger, except the
representations and warranties contained in Section 3.3 ,
Section 4.4 and Section 4.5 of this Agreement, which
shall survive the Merger.
ARTICLE VII
Miscellaneous
Section 7.1.
Entire Agreement . This
Agreement and the other documents referred to herein represent the
entire understanding and agreement between the parties hereto with
respect to the subject matter hereof.
Section 7.2.
Amendments and Waivers . This
Agreement can be amended, supplemented or changed, and any
provision hereof can be waived, only by
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written instrument making specific reference to
this Agreement signed by the party against whom enforcement of any
such amendment, supplement, modification or waiver is sought. No
action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance
with any representation, warranty, or agreement contained herein.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed
