Exhibit 2.2
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 (the “ Company ”) and Stripes
Investment Corp., a Delaware corporation (“ Blocker
Corp. ”).
WHEREAS, the Company 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 Stripes Holdings, LLC, a Delaware limited liability company
(“ Stripes LLC ”), and in connection therewith,
the holders of the membership interests in Stripes LLC desire to
contribute or otherwise transfer their membership interests in
Stripes LLC to the Company (the “ Contribution
”), in order that Stripes LLC may become a direct
wholly-owned subsidiary of the Company and the Company 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, and pursuant to the terms of that certain Agreement
and Plan of Merger by and among the Company, Stripes LLC and Susser
Holdings Merger LLC, a Delaware limited liability company (“
Merger LLC ”), dated October 24, 2006 (the
“ Initial Merger Agreement ”), Merger LLC will
be merged with and into Stripes LLC (the “ Initial
Merger ”), with Stripes LLC as the surviving company in
the Initial Merger;
WHEREAS, pursuant to the Initial
Merger, among other things, and subject to the terms and conditions
of the Initial Merger Agreement, all of the issued and outstanding
common membership units of Merger LLC shall together be converted
into and become validly issued, fully paid and nonassessable common
units of Stripes LLC and all of the issued and outstanding
Class A Units of Stripes LLC (the “ Class A
Units ”) and Class B Units of Stripes LLC (the “
Class B Units ” and collectively with the
Class A Units, the “ Stripes LLC Membership Units
”) being cancelled in the Initial Merger and the holders of
such Stripes LLC Membership Units receiving common stock of the
Company, par value $0.01 (the “ Company Common Stock
”), in the Initial Merger;
WHEREAS, Blocker Corp. is (prior to
the Initial Merger) a member of Stripes LLC and will receive
Company Common Stock in exchange for its Stripes LLC Membership
Units in the Initial Merger;
WHEREAS, immediately upon and
contingent upon the consummation of the Initial Merger, the Company
and Blocker Corp. desire that Blocker Corp. merge with and into the
Company, with the Company as the surviving entity (the “
Secondary Merger ”), with all of the issued and
outstanding stock of Blocker Corp. (the “ Blocker Corp.
Stock ”) being cancelled and the holders of such Blocker
Corp. Stock receiving Company Common Stock in the Secondary Merger
as consideration therefor;
WHEREAS, the Board of Directors of
the Company has approved and declared advisable this Agreement and
the Secondary Merger, on the terms and subject to the conditions
provided for in this Agreement;
WHEREAS, the stockholders of the
Company have approved and declared advisable this Agreement and the
Secondary Merger, on the terms and subject to the conditions
provided for in this Agreement (the “ Company Stockholder
Approval ”);
WHEREAS, the Board of Directors of
Blocker Corp. has approved and declared advisable this Agreement
and the Secondary Merger, on the terms and subject to the
conditions provided for in this Agreement;
WHEREAS, the sole stockholder of
Blocker Corp. have approved and declared advisable this Agreement
and the Secondary Merger, on the terms and subject to the
conditions provided for in this Agreement (the “ Blocker
Corp. Stockholder Approval ”);
WHEREAS, for federal income tax
purposes, it is intended that the Secondary Merger shall qualify as
a Contribution within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the “ Code
”), and the rules and regulations promulgated thereunder, and
that this Agreement constitutes a plan of Contribution;
and
WHEREAS, it is also intended that
the Secondary Merger, together with and as part of a larger
transaction that includes the Initial Merger, for federal income
tax purposes shall qualify as a transaction described in
Section 351 of the Code.
NOW, THEREFORE, in consideration of
the representations, warranties, covenants and agreements contained
in this Agreement, and intending to be legally bound hereby the
Company and Blocker Corp. hereby agree as follows:
ARTICLE I
The Secondary
Merger
Section 1.1
. The Secondary Merger . Upon
the terms and subject to the conditions set forth in this
Agreement, and in accordance with the General Corporation Law of
the State of Delaware (the “ DGCL ”), at the
Effective Time (as defined below) Blocker Corp. shall be merged
with and into the Company, and the separate existence of Blocker
Corp. shall thereupon cease, and the Company shall be the surviving
company in the Secondary Merger (the “ Surviving
Company ”).
Section 1.2
. Closing . The closing of
the Secondary Merger (the “ Closing ”) shall
take place immediately upon the satisfaction or waiver of the
conditions to closing set forth in Article V hereof (the
“ Closing Date ”), at the offices of Weil,
Gotshal & Manges LLP, 200 Crescent Court, Suite 300,
Dallas, Teas, 75201, unless another time, date or place is agreed
to by the parties hereto.
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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 DGCL (the “
Certificate of Merger ”). The Secondary 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 Secondary
Merger becomes effective is herein referred to as the “
Effective Time ”).
Section 1.4
. Effects of the Secondary
Merger . The Secondary Merger shall have the effects set forth
in the DGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights,
privileges, powers and franchises of Blocker Corp. shall vest in
the Surviving Company, and all debts, liabilities and duties of
Blocker Corp. shall become the debts, liabilities and duties of the
Surviving Company.
Section 1.5
. Certificate of Incorporation
and Bylaws of the Surviving Company .
(a) The certificate of incorporation
of the Company in effect immediately prior to the Effective Time
shall be the certificate of incorporation of the Surviving Company
until thereafter amended as provided therein or by applicable
law.
(b) At the Effective Time, the
bylaws of the Company in effect immediately prior to the Effective
Time shall be the bylaws of the Surviving Company until thereafter
amended as provided therein or by applicable law.
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 incorporation or
bylaws 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 incorporation or
bylaws of the Surviving Company.
ARTICLE II
Effect of the Secondary Merger on
the Capital Stock of the
Constituent
Entities
Section 2.1
. Effect on Capital Stock .
At the Effective Time, by virtue of the Secondary Merger and
without any action on the part of the holder of any Company Common
Stock or any Blocker Corp. Stock:
(a) Conversion of Blocker Corp.
Stock . Each share of Blocker Corp. Stock issued and
outstanding immediately prior to the Effective Time shall be
converted into the right to receive 34,800.66 validly issued, fully
paid and nonassessable shares of Company Common Stock. As of the
Effective Time, all such Blocker Corp. Stock shall no longer be
outstanding and shall automatically be canceled and shall cease to
exist, and the holder of a certificate which immediately prior to
the Effective Time represented any such share of Blocker Corp.
Stock shall cease to have any rights with respect thereto, except
the right to receive the Company Common Stock.
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(b) Company Common Stock .
All shares of Company Common Stock outstanding immediately prior to
the Secondary Merger and owned by Blocker Corp. shall be
surrendered and cancelled and no longer remain outstanding for any
purpose.
Section 2.2
. Stock Certificates in the
Company. Upon presentation by a holder of certificates
representing Blocker Corp. Stock for exchange, the Company shall
issue stock certificates to such holder in respect of the Company
Common Stock to be issued to such holder pursuant to
Section 2.1 .
Section 2.3
. No Further Ownership Rights in
Blocker Corp. Stock . From and after the Effective Time, the
shares of Company Common Stock issued and paid as merger
consideration to holders of Blocker Corp. Stock in accordance with
this Agreement shall be deemed to have been is
