EXHIBIT 2.3
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ASSIGNMENT AND AMENDMENT OF
PURCHASE AND SALE AGREEMENT
AMONG
ENERGY PARTNERS, LTD.
("ASSIGNOR")
XXXX-XXXXXXX OIL COMPANY
("ASSIGNEE")
AND
HALL PARTNERS, L.P.
LPCR INVESTMENT GROUP, X.X.
XXXX CONSULTING COMPANY, INC.
HALL EQUITIES, INC.
HALL FAMILY TRUST
XXXXX X. XXXXXX
XXXXX X. XXXX
AND
XXXX X. XXXXX
("SELLERS")
January 15, 2002
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TABLE OF CONTENTS
Page
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Article I DEFINITIONS AND INTERPRETATION.........................................................1
1.1 Terms Defined Above....................................................................1
1.2 Terms Defined in Purchase Agreement....................................................1
1.3 References.............................................................................1
1.4 Articles and Sections..................................................................2
1.5 Number and Gender......................................................................2
Article II ASSIGNMENT.............................................................................2
2.1 Assignment by Assignor.................................................................2
2.2 Acceptance by Assignee.................................................................2
2.3 Continuing Obligations of Assignor.....................................................2
Article III AMENDMENTS.............................................................................3
3.1 Amendment of Definition of Purchaser...................................................3
3.2 Amendment to Section 2.1...............................................................3
3.3 Amendment to Section 2.3...............................................................3
3.4 Amendment to Section 3.1...............................................................3
3.5 Amendments to Section 3.2..............................................................3
3.6 Amendment to Section 9.6...............................................................3
3.7 Amendment to Section 10.1..............................................................4
3.8 Amendment to Section 10.13.............................................................4
3.9 Amendment to Schedule 2.1..............................................................4
3.10 Amendments to Exhibits.................................................................4
Article IV RATIFICATION...........................................................................4
Article V CONSENT OF ASSIGNOR....................................................................4
Article VI PARTICIPATION IN MERGER................................................................5
6.1 Commitment of Sellers..................................................................5
6.2 Merger Consideration to Sellers........................................................5
6.3 Representations and Warranties of Sellers..............................................5
6.4 Waiver of Appraisal Rights.............................................................5
6.5 Release by Sellers.....................................................................5
Article VII MISCELLANEOUS..........................................................................5
7.1 Successors and Assigns.................................................................5
7.2 Rights of Third Parties................................................................5
7.3 Counterparts...........................................................................5
7.4 Integration............................................................................6
7.5 Invalidity.............................................................................6
7.6 Governing Law..........................................................................6
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ASSIGNMENT AND AMENDMENT OF
PURCHASE AND SALE AGREEMENT
This ASSIGNMENT AND AMENDMENT OF
PURCHASE AND SALE AGREEMENT (this
"Amendment") is made and entered into effective this 15th day of January, 2002,
by and among ENERGY PARTNERS, LTD., a Delaware corporation ("Assignor"),
XXXX-XXXXXXX OIL COMPANY, a Texas corporation ("Assignee"), and HALL PARTNERS,
L.P., a Texas limited partnership, LPCR INVESTMENT GROUP, L.P., a Texas limited
partnership, HALL CONSULTING COMPANY, INC., a Texas corporation, HALL EQUITIES,
INC., a Texas corporation, HALL FAMILY TRUST, a trust established under the laws
of the State of Texas, XXXXX X. XXXXXX, XXXXX X. XXXX, and XXXX X. XXXXX
(collectively, "Sellers" and individually a "Seller").
WITNESSETH:
WHEREAS, Assignor and Sellers are parties to that certain
Purchase and
Sale Agreement dated December 16, 2001 (the "Purchase Agreement");
WHEREAS, Assignor, Saints Acquisition Subsidiary, Inc. (a wholly-owned
subsidiary of Assignor), and Assignee are parties to that certain Agreement and
Plan of Merger dated as of December 16, 2001, as amended by Amendment No. 1
thereto (as so amended, the "Merger Agreement"), pursuant to which Saints
Acquisition Subsidiary, Inc. is to be merged with and into Assignee (the
"Merger"); and
WHEREAS, as contemplated in the Purchase Agreement and the Merger
Agreement, Assignor desires to assign to Assignee the rights of Purchaser under
the Purchase Agreement and, in connection with such assignment, Assignee and
Sellers desire to amend the Purchase Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Terms Defined Above. As used in this Assignment and Amendment of
Purchase and Sale Agreement, each of the terms "Amendment," "Assignee,"
"Assignor," "Merger," "Merger Agreement," and "Purchase Agreement" shall have
the meaning assigned to such term hereinabove.
1.2 Terms Defined in Purchase Agreement. Each term defined in the
Purchase Agreement and used herein without definition shall have the meaning
assigned to such term in the Purchase Agreement, unless expressly provided to
the contrary.
1.3 References. References in this Amendment to Schedule, Exhibit,
Article, or Section numbers shall be to Schedules, Exhibits, Articles, or
Sections of this Amendment, unless expressly stated to the contrary. References
in this Amendment to "hereby," "herein," "hereinafter," "hereinabove,"
"hereinbelow," "hereof," "hereunder" and words of similar import shall be to
this
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Amendment in its entirety and not only to the particular Schedule, Exhibit,
Article, or Section in which such reference appears. Specific enumeration herein
shall not exclude the general and, in such regard, the terms "includes" and
"including" used herein shall mean "includes, without limitation," or
"including, without limitation," as the case may be, where appropriate. Except
as otherwise indicated, references in this Amendment to statutes, sections, or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending, replacing, succeeding, or supplementing the
statute, section, or regulation referred to. References in this Amendment to
"writing" include printing, typing, lithography, facsimile reproduction, and
other means of reproducing words in a tangible visible form. References in this
Amendment to amendments and other contractual instruments shall be deemed to
include all exhibits and appendices attached thereto and all subsequent
amendments and other modifications to such instruments, but only to the extent
such amendments and other modifications are not prohibited by the terms of this
Amendment. References in this Amendment to Persons include their respective
successors and permitted assigns.
1.4 Articles and Sections. This Amendment, for convenience only, has
been divided into Articles and Sections, and it is understood that the rights
and other legal relations of the parties hereto shall be determined from this
instrument as an entirety and without regard to the aforesaid division into
Articles and Sections and without regard to headings prefixed to such Articles
or Sections.
1.5 Number and Gender. Whenever the context requires, reference herein
made to the single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the singular. Definitions of
terms defined in the singular or plural shall be equally applicable to the
plural or singular, as the case may be, unless otherwise indicated. Words
denoting sex shall be construed to include the masculine, feminine and neuter,
when such construction is appropriate; and specific enumeration shall not
exclude the general but shall be construed as cumulative.
ARTICLE II
ASSIGNMENT
2.1 Assignment by Assignor. Assignor hereby transfers and assigns to
Assignee all of the rights of Purchaser under the Purchase Agreement.
2.2 Acceptance by Assignee. Assignee hereby accepts the assignment made
by Assignor in Section 2.1 and agrees to proceed with the Closing on the terms
provided in the Purchase Agreement, as hereinafter amended.
2.3 Continuing Obligations of Assignor. As provided in Section 10.4 of
the Purchase Agreement, Assignor acknowledges that the assignment made by
Assignor in Section 2.1 does not relieve Assignor of the obligation to perform,
or cause Assignee to perform, all of the obligations of Purchaser under the
Purchase Agreement, as hereinafter amended, including the obligation to provide
indemnification pursuant to certain provisions of Article IX of the Purchase
Agreement.
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ARTICLE III
AMENDMENTS
Assignee and Sellers, joined by Assignor where appropriate, hereby
amend the Purchase Agreement as follows:
3.1 Amendment of Definition of Purchaser. The Purchase Agreement is
amended to provide that all references therein to "Purchaser" are deemed to be
references to Assignee, except with respect to Section 3.2 and clause (e) of
Section 6.1 of the Purchase Agreement.
3.2 Amendment to Section 2.1. Section 2.1 of the Purchase Agreement is
amended to read as follows in its entirety:
"2.1 Purchase Price. The purchase price for the Interests (the
"Purchase Price") is 125,000 shares of 2002 Preferred Stock,
par value $0.01 per share, of Purchaser ("Purchaser 2002
Preferred Stock"). The Purchase Price is allocable among the
Sellers as set forth in Schedule 2.1."
3.3 Amendment to Section 2.3. Section 2.3 of the Purchase Agreement is
amended to read as follows in its entirety:
"2.3 Payment of Purchase Price. At the Closing (as defined in
Section 7.1), Purchaser shall make a notation on the books of
the Company relating to the Purchaser 2002 Preferred Stock
evidencing the requisite shares of Purchaser 2002 Preferred
Stock, as reflected in Schedule 2.1, as registered in the name
of such Seller on the books of Purchaser."
3.4 Amendment to Section 3.1. Paragraphs (s) and (t) of Section 3.1 of
the Purchase Agreement are amended as necessary to relate to both the shares of
Purchaser 2002 Preferred Stock to be issued to each Seller under the Purchase
Agreement and the Buyer Warrants to be received in exchange for such shares of
Purchaser 2002 Preferred Stock under the Merger Agreement.
3.5 Amendments to Section 3.2. The parties agree that, (a)
notwithstanding the provisions of Section 3.1, the representations and
warranties made in Section 3.2 of the Purchase Agreement continue to be made by
Assignor, but are made for the benefit of Sellers in connection with their
participation in the Merger, as provided in Article V and (b) Assignee makes
with respect to itself for the benefit of Sellers the same representations and
warranties made by Assignor with respect to itself in Sections 3.2(a)-(h) and
(l) of the Purchase Agreement. Furthermore, subsection (j) of Section 3.2 of the
Purchase Agreement is amended to read as follows in its entirety:
"(j) Intentionally blank."
3.6 Amendment to Section 9.6. Paragraph (e) of Section 9.6 of the
Purchase Agreement is amended to provide that the limitation on indemnification
by each Seller or the Xxxx Xxxx Group,
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as the case may be, is determined on the basis of the value of the consideration
received by such Seller or the Xxxx Xxxx Group, as the case may be, in the
Merger.
3.7 Amendment to Section 10.1. Section 10.1 of the Purchase Agreement
is amended to provide the address of Assignee for purposes of the Purchase
Agreement, as hereby amended, shall be the address of Assignor provided in
Section 10.1 of the Purchase Agreement prior to giving effect to this Amendment.
3.8 Amendment to Section 10.13. Section 10.13 of the Purchase Agreement
is amended to insert the following sentence at the end thereof.
"Notwithstanding the foregoing two sentences, Energy Partners,
Ltd. ("EPL") shall be an express third party beneficiary of
all of HHOC's rights and benefits as Purchaser under this
Agreement and HHOC may not waive any provision of this
Agreement intended for HHOC's benefit (including Section 3.1,
Section 4.1, Article V, Section 6.2, Article VII, Article VIII
and Article IX) without the written consent of EPL."
3.9 Amendment to Schedule 2.1. Schedule 2.1 to the Purchase Agreement
is replaced with Schedule 2.1 attached to this Amendment.
3.10 Amendments to Exhibits. The Exhibits to the Purchase Agreement are
amended to reflect Assignee as Purchaser and pertinent information as to
Assignee, including the address of Assignee as 000 Xxxxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000 and the taxpayer identification number of Assignee.
ARTICLE IV
RATIFICATION
Each of the parties hereto does hereby adopt, ratify and confirm the
Purchase Agreement, as the same is amended hereby, and acknowledges and agrees
that the Purchase Agreement, as amended hereby, is and remains in full force and
effect.
ARTICLE V
CONSENT OF ASSIGNOR
To the extent otherwise prohibited under the terms of the Merger
Agreement, Assignor hereby consents to the establishment of a series of
preferred stock of Assignee to be the Purchaser 2002 Preferred Stock (as defined
in Section 2.1 of the Purchase Agreement, as hereby amended) and to the issuance
by Assignee of shares of such preferred stock as part of the Closing.
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ARTICLE VI
PARTICIPATION IN MERGER
6.1 Commitment of Sellers. Sellers hereby agree to participate in the
Merger and to exchange the shares of Purchaser 2002 Preferred Stock (as defined
in Section 2.1 of the Purchase Agreement, as hereby amended) received at Closing
for the consideration provided in Section 6.2.
6.2 Merger Consideration to Sellers. Upon the closing of the Merger,
Sellers shall receive from Assignor the Securities Consideration and the Earnout
Consideration (as defined in Section 2.1 of the Purchase Agreement prior to
giving effect to this Amendment). Such consideration shall be allocated among
Sellers as provided in Schedule 2.1 to the Purchase Agreement prior to giving
effect to this Amendment.
6.3 Representations and Warranties of Sellers. In connection with the
closing of the Merger, each Seller, severally and not jointly, makes in favor of
Assignor the representations and warranties set forth in paragraphs (s) and (t)
of Section 3.1 of the Purchase Agreement prior to giving effect to this
Amendment.
6.4 Waiver of Appraisal Rights. Each Seller hereby agrees to waive any
appraisal rights that such Seller may have under the Texas Business Corporation
Act with respect to the Merger.
6.5 Release by Sellers. Upon consummation of the Merger, each Seller
hereby releases Xxxx-Xxxxxxx from (a) any obligation to redeem shares of the
Purchaser 2002 Preferred Stock and (b) any obligation to pay accrued but unpaid
dividends with respect to the Purchaser 2002 Preferred Stock, if any.
ARTICLE VII
MISCELLANEOUS
7.1 Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted pursuant to the Purchase Agreement.
7.2 Rights of Third Parties. Except as provided in Section 7.1, all
provisions herein are imposed solely and exclusively for the benefit of the
parties hereto.
7.3 Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts, and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument and shall be enforceable upon the execution of one or more
counterparts hereof by each of the parties hereto. In this regard, each of the
parties hereto acknowledges that a counterpart of this Amendment containing a
set of counterpart execution pages reflecting the execution of each party hereto
shall be sufficient to reflect the execution of this Amendment by each necessary
party hereto and shall constitute one instrument.
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7.4 Integration. This Amendment constitutes the entire agreement among
the parties hereto with respect to the subject hereof. All prior understandings,
statements and agreements, whether written or oral, relating to the subject
hereof are superseded by this Amendment.
7.5 Invalidity. In the event that any one or more of the provisions
contained in this Amendment shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Amendment.
7.6 Governing Law. This Amendment shall be deemed to be a contract made
under and shall be governed by and construed in accordance with the laws of the
State of
Louisiana, without regard to principles of such laws relating to
conflict of laws.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Amendment of
Purchase and Sale Agreement to be duly executed and delivered as of
the date first written above.
ASSIGNOR:
WITNESSES: ENERGY PARTNERS, LTD.
By:
-------------------------------- ------------------------------------
Name: Name:
--------------------------- ----------------------------------
Title:
---------------------------------
--------------------------------
Name:
---------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Amendment of
Purchase and Sale Agreement to be duly executed and
delivered as of the date first written above.
ASSIGNEE:
WITNESSES TO ALL FOLLOWING XXXX-XXXXXXX OIL COMPANY
SIGNATURES:
By:
-------------------------------- ------------------------------------
Name: Xxxxx X. Xxxx
--------------------------- President
--------------------------------
Name:
---------------------------
SELLERS:
HALL PARTNERS, L.P.
By: Hall Interests, Inc.
its General Partner
By:
------------------------------
Xxxx X. Xxxx
President
LPCR INVESTMENT GROUP, L.P.
By: Hall Interests, Inc.
its General Partner
By:
------------------------------
Xxxx X. Xxxx
President
HALL CONSULTING COMPANY, INC.
By:
------------------------------------
Xxxx X. Xxxx
President
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HALL EQUITIES, INC.
By:
------------------------------------
Xxxx X. Xxxx
President
HALL FAMILY TRUST
By:
------------------------------------
Xxxx X. Xxxx
Trustee
---------------------------------------
Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxxx
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The undersigned, Xxxxx X. Butte (spouse of Xxxxx X. Xxxxxx), Xxxxxxx X.
Xxxx (spouse of Xxxxx X. Xxxx), and Xxx X. Xxxxx (spouse of Xxxx X. Xxxxx), join
in execution of this Amendment to commit to this Amendment their respective
community property interests in the Interests of their respective spouses
committed to the Purchase Agreement, as hereby amended.
WITNESSES:
-------------------------------- ------------------------------------
Name: Xxxxx X. Butte
---------------------------
--------------------------------
Name:
---------------------------
WITNESSES:
-------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxx
---------------------------
--------------------------------
Name:
---------------------------
WITNESSES:
-------------------------------- ------------------------------------
Name: Xxx X. Xxxxx
---------------------------
--------------------------------
Name:
---------------------------
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SCHEDULE 2.1
TO
PURCHASE AND SALE AGREEMENT
DATED DECEMBER 16, 2001, AS AMENDED,
BETWEEN HALL PARTNERS, L.P.,
ET AL., AS SELLERS, AND
XXXX-XXXXXXX OIL COMPANY,
AS PURCHASER
Shares of Purchaser
Sellers 2002 Preferred Stock
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Hall Partners, L.P. 57,691.5
LPCR Investment
Group, L.P. 9,615.5
Hall Consulting
Company, Inc. 9,615.5
Hall Equities, Inc. 9,615.5
Hall Family Trust 9,615.5
Xxxxx X. Xxxxxx 9,615.5
Xxxxx X. Xxxx 9,615.5
Xxxx X. Xxxxx 9,615.5
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125,000.0
