AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Amendment no. 1, dated as of July 7, 2006 (this “Amendment”), among Anadarko
Petroleum Corporation, a Delaware corporation (“Parent”), Apc Merger Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and Western Gas
Resources, Inc., a Delaware corporation (the “Company”).
INTRODUCTION
WHEREAS, Parent, Merger Sub and the Company are parties to that certain Agreement and Plan of
Merger, dated as of June 22, 2006 (the “Agreement”); and
WHEREAS, pursuant to Section 7.4 of the Agreement, the parties to this Amendment desire to
amend the Agreement as provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained in
this Amendment and for other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Parent, Merger Sub and the Company hereby agree as follows:
SECTION 1. Amendments to the Agreement. The following amendments are hereby made to
the Agreement:
(a) The first sentence of Section 5.1(a) of the Agreement is hereby amended and replaced in
its entirety with the following:
“As soon as practicable following the date of this Agreement, the Company shall prepare and
use its reasonable best efforts to, by July 7, 2006, in any event by July 10, 2006, file
with the SEC the Proxy Statement.”
(b) Section 5.1(c) is amended and replaced in its entirety with the following:
“(c) Notwithstanding anything contained in this Section 5.1 to the contrary, the
Company agrees that its obligations pursuant to this Section 5.1 shall not be
affected by the commencement, public proposal or communication to the Company of any
Takeover Proposal. Notwithstanding the receipt by the Company of a Superior Proposal,
unless Parent terminates this Agreement under Section 7.1(f), then prior to the
termination of this Agreement taking effect under Section 7.1(f), the Company shall
be obligated to comply with Section 5.1(b) and the other terms of this Agreement,
including by holding the Company Stockholders Meeting, except that the Company shall not be
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required to hold the Company Stockholders Meeting if the Company has terminated this
Agreement under Section 7.1(g) and paid to Parent the Termination Fee in
immediately available funds contemplated by Section 7.3(a). If (x) a Takeover
Proposal shall have been made or shall have otherwise become publicly known or any Person
shall have publicly announced an intention (whether or not conditional) to make a Takeover
Proposal, (y) the Company’s Board of Directors withdraws, modifies or changes its
recommendation of this Agreement or the Merger in a manner adverse to Parent or resolves to
do any of the foregoing or the Company’s Board of Directors recommends to the Company’s
stockholders any Takeover Proposal or resolves to do so, and (z) the Required Company
Stockholder Vote is not secured at such meeting, then at such time this Agreement shall be
deemed to be terminated by the Company under Section 7.1(f) and the Company shall
pay to Parent the amount contemplated by Section 7.3(f).”
(c) The “]” in Section 5.3(a)(iii) is hereby removed.
(d) Section 7.1(d) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(d) by either the Company or Parent, if at the Company Stockholders Meeting (including any
adjournment or postponement thereof), the Required Company Stockholder Vote shall not have
been obtained in circumstances other than where (i) a Non-Takeover-Related Change of
Recommendation has occurred or (ii) the circumstances contemplated by Sections
7.1(f)(i)-(iii) and (iv)(B) exist”
(e) 7.1(f)(iv) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(iv) (A) in the case of termination by Parent at any time before the Company Stockholders’
Meeting, the Company promptly, but in no event later than one Business Day after such
termination, pays to Parent in immediately available funds the Termination Fee pursuant to
Section 7.3(a) or (B) in the case of termination by Parent or the Company following
the Company Stockholders’ Meeting at which the Required Company Stockholder Vote is not
obtained and subject to Section 5.1, the Company concurrently with such termination
(or, in the case of termination by Parent, promptly, but in no event later than one
Business Day after such termination) pays to Parent in immediately available funds $50.0
million, as required pursuant to Section 7.3(f)(1) or (2) (as the case may
be);”
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(f) Section 7.1(g)(iv) of the Agreement is hereby amended and replaced in its entirety with
the following:
“(iv) the Company concurrently with such termination (or, in the case of termination by
Parent, promptly, but in no event later than one Business Day after such termination) pays
to Parent in immediately available funds the Termination Fee pursuant to Section
7.3(a);”
(g) Section 7.3(a) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(a) If this Agreement is terminated pursuant to Section 7.1(e)(i), Section
7.1(e)(ii), Section 7.1(e)(iii) or, following the failure of the Board of
Directors of the Company to Recommend Against a Takeover Proposal, Section 7.1(d),
the Company shall promptly, but in no event later than one Business Day after termination
of this Agreement, pay Parent a fee in immediately available funds of $154.0 million (the
“Termination Fee”). If this Agreement is terminated pursuant to Section 7.1(g),
the Company shall pay such Termination Fee concurrently with such termination. If this
Agreement is terminated by Parent pursuant to Section 7.1(f) where the
circumstances contemplated by Section 7.1(f)(iv)(A) exist, the Company shall
promptly, but in no event later than one Business Day after such termination, pay Parent
the Termination Fee.”
(h) Section 7.3(b)(C) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(C) within 12 months following such termination the Company shall consummate or enter
into, directly or indirectly, an agreement with respect to a transaction constituting a
Takeover Proposal (assuming for purposes of this Section 7.3(b) that the references
to 10% in the definition of Takeover Proposal are 50%) that is subsequently consummated,
the Company shall promptly after the consummation of such transaction, but in no event
later than one Business Day after such consummation, pay Parent the Termination Fee”
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(i) Section 7.3(c) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(c) If (A) a Bona Fide Takeover Proposal (assuming for purposes of this Section
7.3(c) that the references to 10% in the definition of Takeover Proposal are 50%) in
respect of the Company is publicly announced or is proposed or offered or made to the
Company or the Company’s stockholders prior to this Agreement having been approved by the
Required Company Stockholder Vote and the Company’s Board of Directors shall have made or
shall have deemed to have made a Recommendation Against a Takeover Proposal, (B) this
Agreement is terminated by either party, as applicable, pursuant to Section 7.1(d)
and (C) within 12 months following such termination the Company shall consummate or enter
into, directly or indirectly, an agreement with respect to a transaction constituting a
Takeover Proposal (assuming for purposes of this Section 7.3(c) that the references
to 10% in the definition of Takeover Proposal are 50%) that is subsequently consummated,
the Company shall promptly after the consummation of such transaction, but in no event
later than one Business Day after such consummation, pay Parent the Termination Fee.”
(j) Section 7.3(d)(B) of the Agreement is hereby amended and replaced in its entirety with the
following:
“(B) within 12 months following such termination the Company shall consummate or enter
into, directly or indirectly, an agreement with respect to a transaction constituting a
Takeover Proposal (assuming for purposes of this Section 7.3(d) that the references
to 10% in the definition of Takeover Proposal are 50%) that is subsequently consummated,
then the Company shall promptly after the consummation of such transaction, but in no event
later than one Business Day after such consummation, pay Parent the Termination Fee.”
(k) Section 7.3(f) of the Agreement shall hereby become Section 7.3(g) of the Agreement and
the following shall hereby be added as Section 7.3(f) of the Agreement:
“(f) If (A) this Agreement is terminated by Parent or the Company pursuant to Section
7.1(f) where the circumstances contemplated by Section 7.1(f)(iv)(B) exist and
(B) within 12 months following such termination the Company shall consummate or enter into,
directly or indirectly, an agreement with respect to a transaction constituting a Takeover
Proposal (assuming for purposes of this Section 7.3(f) that the references to 10%
in the definition of Takeover Proposal are 50%) that is subsequently consummated, the
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Company shall promptly after the consummation of such transaction, but in no event later
than one Business Day after such consummation, pay Parent a fee in immediately available
funds of $104.0 million; provided that when
(1) Parent terminates this Agreement pursuant to Section 7.1(f), the Company shall
promptly, but in no event later than one Business Day after such termination pay Parent a
fee in immediately available funds of $50.0 million in addition (if it should become
payable thereafter) to the fee of $104.0 million contemplated above, and
(2) the Company terminates this Agreement pursuant to Section 7.1(f), the Company
shall concurrently with such termination, pay Parent a fee in immediately available funds
of $50.0 million in addition (if it should become payable thereafter) to the fee of $104.0
million contemplated above.”
(l) Section 7.3(g) of the Agreement (numbered as such as a result of the amendments under
Section 1(k) of this Amendment) is hereby amended and replaced in its entirety with the following:
“Notwithstanding anything to the contrary contained herein, receipt by Parent of a
Termination Fee under Section 7.3 (or the $50.0 million fee and, if applicable, the
$104.0 million fee, in the case of Section 7.3(f)) shall constitute full settlement
of any and all liabilities of the Company for damages under this Agreement in respect of a
termination of this Agreement.”
SECTION 2. Miscellaneous.
(a) Status of Agreement. Except as expressly set forth in this Amendment, this
Amendment shall not limit constitute a waiver of the rights, remedies, duties and obligations of
the parties to the Agreement, nor modify or amend any of the terms, conditions, covenants or
agreements contained in the Agreement, all of which are ratified and confirmed in all respects and
shall continue in full force and effect. References to the Agreement in the Agreement shall mean
and refer to the Agreement as amended by this Amendment in accordance with Section 7.4 of the
Agreement.
(b) Execution of Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be
executed as of the date first written above.
ANADARKO PETROLEUM CORPORATION |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chairman of the Board, President and
Chief Executive Officer |
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WESTERN GAS RESOURCES, INC. |
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By: | /s/ Xxxxx X. Dea | |||
Name: | Xxxxx X. Dea | |||
Title: | Chief Executive Officer and President | |||
APC MERGER SUB, INC. |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Chairman of the Board, President and
Chief Executive Officer |
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