FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.2
This First Amendment to Agreement and Plan of Merger (“First Amendment”) is made and
entered into as of April 9, 2004, by and among SPI Petroleum LLC, a Delaware limited
liability company (the “Parent”), Xxxxxx Acquisition Co., Inc., a Texas corporation
(“Merger Sub”), Xxxxxx Petroleum, Inc., a Texas corporation (the “Company”), and
Xxxxxx Texas Limited Partnership, a Texas limited partnership and holder of a majority of the
outstanding capital stock of the Company (“Principal Shareholder”).
WHEREAS, the parties entered into that certain Agreement and Plan of Merger dated as of
January 16, 2004 (the “Merger Agreement”), pursuant to which, among other things, the
Parent will acquire the Company as a result of the merger of the Merger Sub with and into the
Company;
WHEREAS, the parties desire to amend the Merger Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Stock Conversion Provisions. Section 2.5(a) of the Merger Agreement
is hereby deleted and replaced with the following:
“(a) Merger Sub Capital Stock. Each share of capital stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into and
exchanged for one validly issued, fully paid and nonassessable share of
common stock of the Surviving Corporation, and such stock shall constitute
all of the issued and outstanding capital stock of the Surviving
Corporation.”
2. Liquidity Holdback. Section 3.4 of the Merger Agreement is hereby amended by adding
a new subsection (j) which reads in its entirety as follows:
“(j) Liquidity Holdback. In addition to the SPI Holdback, an
aggregate of $1,000,000 (the “Liquidity Holdback”) of the Cash
Consideration shall be withheld from the Merger Consideration otherwise
payable to the Shareholders and released pursuant to this Section 3.4(j). On
January 31, 2005, the Parent shall pay (or cause any of its Affiliates to
pay) to the Shareholders, in the proportions set forth in Schedule
2.5(c), the Liquidity Holdback, plus accrued but unpaid interest of 5%
per annum (compounded monthly) beginning at the Effective Time. The payment
of the Liquidity Holdback on January 31, 2005 is unconditional and not
subject to any deductions or right of set off. Notwithstanding anything in
this Section 3.4 to the contrary, in the event the Parent (or its
Affiliates)
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fails to pay in full when due the Liquidity Holdback plus accrued and unpaid
interest due the Shareholders pursuant to this Section 3.4(j), the full
amount of any unreleased SPI Holdback will be due and payable immediately
pursuant to Section 3.4(d) whether earned or not.”
3. Clarification of Holdback References. In order to reflect the addition of the
Liquidity Holdback to Section 3.4 of the Merger Agreement, each reference to a “holdback” that
refers to Section 3.4 of the Merger Agreement is hereby deemed to refer to and include both the SPI
Holdback and the Liquidity Holdback.
4. Amendment to Closing Date Provision. Section 4.1 of the Merger Agreement is
amended to extend the date before which the Closing will occur until April 9, 2004. Accordingly,
the reference to “February 10, 2004” in Section 4.1 of the Merger Agreement is hereby changed to
“April 9, 2004.”
5. Amendment to Termination Provision. Section 11.1 of the Merger Agreement is
amended to extend the date referenced in subsection (e) thereof until April 9, 2004, after which
the Parent or the Principal Shareholder may terminate the Merger Agreement in accordance with the
provisions of Section 11.1. Accordingly, the reference to “February 10, 2004” contained in
subsection (e) of Section 11.1 of the Merger Agreement is hereby changed to “April 9, 2004.”
6. Ratification. The Merger Agreement shall be amended and modified only in the
particulars set forth in this First Amendment, and each of the parties ratifies and confirms the
Merger Agreement as amended herein; provided the term “Disclosure Schedules” shall mean the
Disclosure Schedules delivered with the Merger Agreement as supplemented by the Supplemental
Disclosure Schedules delivered in connection with this First Amendment.
7. Miscellaneous.
This First Amendment is irrevocable, and may not be amended, modified or
supplemented except by written instrument executed by the parties hereto.
This First Amendment shall inure to the benefit of the parties hereto, their
respective successors and assigns.
This First Amendment shall be governed by and construed in accordance with the laws
of the State of Texas.
This First Amendment may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
Any capitalized term not otherwise defined herein shall have the meaning given to
it in the Merger Agreement.
Except as expressly provided in this First Amendment, all of the terms and
provisions contained in the Merger Agreement remain unchanged.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed on
their respective behalf, by their respective officers thereunto duly authorized, all as of the day
and year first above written.
| PARENT: | ||||
| SPI Petroleum LLC, | ||||
| a Delaware limited liability company | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Its: | President | |||
| MERGER SUB: | ||||
| Xxxxxx Acquisition Co., Inc., | ||||
| a Texas corporation | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Its: | President | |||
| COMPANY: | ||||
| Xxxxxx Petroleum, Inc., | ||||
| a Texas corporation | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Its: | President | |||
| PRINCIPAL SHAREHOLDER: | ||||
| Xxxxxx Texas Limited Partnership, | ||||
| a Texas limited partnership | ||||
| By: | Xxxxxx Capital Texas Corporation, a Texas corporation, its general partner | |||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Its: | President | |||
0454772.02
