AMENDMENT NO. 1 TO CONTRIBUTION AND REDEMPTION AGREEMENT
Exhibit 2.1
Execution Copy
AMENDMENT NO. 1 TO
CONTRIBUTION AND REDEMPTION AGREEMENT
This AMENDMENT NO. 1, dated as of December 1, 2011 (this “Amendment”), to the Contribution and Redemption Agreement, dated as of October 15, 2011 (the “Contribution Agreement”), is made and entered into by and among Energy Transfer Partners, L.P., a Delaware limited partnership (“ETP”), Energy Transfer Partners GP, L.P., a Delaware limited partnership and the general partner of ETP (“ETP GP”), Heritage ETC, L.P., a Delaware limited partnership (“Contributor”), and AmeriGas Partners, L.P., a Delaware limited partnership (“Acquirer”).
ETP, ETP GP and Contributor are sometimes referred to individually in this Amendment as a “Contributor Party” and are sometimes collectively referred to in this Amendment as the “Contributor Parties.” Each of the parties to this Amendment is sometimes referred to individually in this Agreement as a “Party” and all of the parties to this Amendment are sometimes collectively referred to in this Amendment as the “Parties.”
R E C I T A L S
WHEREAS, the Parties are parties to the Contribution Agreement, pursuant to which, upon the terms and subject to the conditions set forth therein, Contributor will contribute to Acquirer, and Acquirer will acquire from Contributor, the Acquired Interests, and in exchange Acquirer will issue to ETP the Equity Consideration and the Cash Consideration; and
WHEREAS, the Parties wish to amend the Contribution Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree that, effective as of the date of this Amendment, the Contribution Agreement shall be amended as follows:
ARTICLE I
DEFINITIONS; REFERENCES
Section 1.1 Definitions; References. Unless otherwise specifically defined herein, each capitalized term used but not defined herein shall have the meaning assigned to such term in the Contribution Agreement. On and after the date hereof, each reference in the Contribution Agreement to “this Agreement,” “herein,” “hereunder” or words of similar import shall mean and be a reference to the Contribution Agreement as amended by this Amendment. Each reference herein to “the date of this Amendment” shall refer to the date set forth above and, except as otherwise expressly provided in this Amendment, each reference in the Contribution Agreement to the “date of this Agreement” or “date hereof” or similar references shall refer to October 15, 2011.
ARTICLE II
AMENDMENTS
Section 2.1 Amendment to Section 3.9(c). Section 3.9(c) of the Contribution Agreement is hereby amended by deleting the last sentence thereof and replacing it in its entirety with the following: “The Propane Group Audited Financial Statements, when delivered pursuant to Section 5.13(a), (A) will not differ in any material respect from the XXXX Financial Statements and the Titan Unaudited Financial Statements, except for any differences required by GAAP in presenting XXXX and its Subsidiaries and Titan and its Subsidiaries on a combined basis, (B) will be prepared in accordance with (1) GAAP, applied on a consistent basis throughout the periods presented thereby, and (2) Regulation S-X and (C) will fairly present in all material respects the combined financial position and operating results, equity and cash flows of XXXX and its Subsidiaries and Titan and its Subsidiaries, on a combined basis, as of, and for the periods ended on, the respective dates thereof, subject, however, in the case of unaudited financial statements, to normal year-end audit adjustments.”
Section 2.2 Amendments to Section 5.13(a), Section 5.22(a) and Section 6.2(e).
(a) Section 5.13(a), Section 5.22(a) and Section 6.2(e) of the Contribution Agreement are hereby amended by replacing the term “Titan Audited Financial Statements” with the term “Propane Group Audited Financial Statements” each place where such term appears.
(b) Section 5.13(a) is hereby amended by replacing clause (ii) of the final sentence thereof with the following: “(ii) Xxxxx Xxxxxxxx LLP to audit the Titan Audited Financial Statements in accordance with the auditing standards established by the American Institute of Certified Public Accountants.”
Section 2.3 Amendment to Section 5.26(a). Section 5.26(a) is hereby amended in its entirety to read as follows: “Except as set forth in Schedule 5.26(a) of the Contributor Disclosure Schedule, prior to the Contribution Closing, the Contributor Parties shall cause any Contract described in Section 3.15(a)(i) that is disclosed (or should have been disclosed) in Schedule 3.15(a) of the Contributor Disclosure Schedule, to be terminated or otherwise amended to exclude any of the Propane Group Entities as a party thereto.”
Section 2.4 Amendment to Exhibit A. Exhibit A to the Contribution Agreement is hereby amended by:
(i) Deleting the definition of “Titan Audited Financial Statements” in its entirety; and
(ii) Adding the following definition in the appropriate alphabetical position:
“Propane Group Audited Financial Statements” means (a) the audited combined balance sheets of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries as of December 31, 2009 and 2010 and audited
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combined statements of operations and comprehensive income, statements of partners’ capital, and statements of cash flows of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries for the twelve (12) month periods ended December 31, 2008, 2009 and 2010.
Section 2.5 Amendment to Schedule 5.13(b) of the Contributor Disclosure Schedule. Schedule 5.13(b) of the Contributor Disclosure Schedule is hereby amended by replacing it in its entirety with the Schedule 5.13(b) attached to this Amendment.
ARTICLE III
GENERAL PROVISIONS
Section 3.1 Effect on the Contribution Agreement. The Contribution Agreement shall remain in full force and effect and, as amended by this Amendment, is hereby ratified and affirmed in all respects.
Section 3.2 Facsimiles; Counterparts. This Amendment may be executed by facsimile signatures by any Party and such signature shall be deemed binding for all purposes hereof, without delivery of an original signature being thereafter required. This Amendment may be executed in counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.
Section 3.3 Governing Law; Jurisdiction. The provisions set forth in Article IX of the Contribution Agreement are incorporated herein by reference.
[Signature page follows.]
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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be executed by its respective duly authorized officers as of the date first above written.
| CONTRIBUTOR PARTIES: | ||
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| By: | Energy Transfer Partners GP, L.P., its general partner | |
| By: | Energy Transfer Partners, L.L.C., its general partner | |
| By: | /s/ Xxxxxx X. Xxxxx | |
| Xxxxxx X. Xxxxx Vice President, General Counsel and Secretary | ||
| ENERGY TRANSFER PARTNERS GP, L.P. | ||
| By: | Energy Transfer Partners, L.L.C., its general partner | |
| By: | /s/ Xxxxxx X. Xxxxx | |
| Xxxxxx X. Xxxxx Vice President, General Counsel and Secretary | ||
| HERITAGE ETC, LP | ||
| By: | Heritage ETC GP, LLC, its general partner | |
| By: | /s/ Xxxxxx X. Xxxxx | |
| Xxxxxx X. Xxxxx Vice President, General Counsel and Secretary | ||
Signature Page to Amendment No. 1
Contribution Agreement
| ACQUIRER:
AMERIGAS PARTNERS, L.P. | ||
| By: | AmeriGas Propane, Inc., its general partner | |
| By: | /s/ Xxxxxx Xxxxxxx | |
| Xxxxxx Xxxxxxx President and CEO | ||
Signature Page to Amendment No. 1
Contribution Agreement
Schedule 5.13(b)
Required Financial Information
“Required Financial Information” means, as of any date, (i) such financial statements, financial data and other pertinent information regarding the Propane Group Entities of the type required by Regulation S-X under the Securities Act for registered offerings of non-convertible debt securities to consummate the offering of unsecured senior notes and (ii) such other information and data as are otherwise reasonably necessary in order to receive customary “comfort” letters with respect to the financial statements and data referred to in clause (i) of this definition (including “negative assurance” comfort) from the independent auditors of the Propane Group Entities on any date during the Marketing Period, including the following financial statements:
(1) the audited combined balance sheets of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries as of December 31, 2009 and 2010 and audited combined statements of operations and comprehensive income, statements of cash flows and statements of partners’ capital of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries for the twelve month periods ended December 31, 2008, 2009 and 2010;
(2) the unaudited combined balance sheet of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries as of September 30, 2011 and December 31, 2010, the unaudited combined statements of operations and comprehensive income, and statements of cash flows for XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries for the three and nine month periods ended September 30, 2011 and September 30, 2010, and the unaudited combined statements of partners’ capital for XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries for the nine month periods ended September 30, 2011 and September 30, 2010;
(3) the unaudited combined balance sheet, statements of operations and comprehensive income, statements of cash flow and statements of partners’ capital of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries for each quarter ended subsequent to the quarter ended September 30, 2011, but at least 40 days prior to the completion of the Marketing Period, including the unaudited statements of operations and comprehensive income, statements of cash flow and statements of partners’ capital for the corresponding period in the prior fiscal year; and
(4) the unaudited combined balance sheet of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries as of September 30, 2011 and the unaudited combined statement of operations of XXXX and its consolidated Subsidiaries and Titan and its consolidated Subsidiaries for the twelve month period ended September 30, 2011.
Schedule 5.13(b)
