EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
executed as of the 17th day of December, 2001, by and among Magnum Hunter
Resources, Inc., a Nevada corporation ("Magnum Hunter"), Pintail Energy, Inc., a
Texas corporation ("Pintail-Texas"), Prize Energy Corp., a Delaware corporation
("Prize"), and Pintail Energy, Inc., a Delaware corporation
("Pintail-Delaware");
WITNESSETH:
WHEREAS, Magnum Hunter organized Pintail-Texas as a Texas corporation
to serve as the acquisition subsidiary in connection with the forward merger of
Prize into a Magnum Hunter subsidiary (the "Merger") pursuant to the Agreement
and Plan of Merger dated December 17, 2001 (the "Agreement") among Magnum
Hunter, Pintail-Texas and Prize;
WHEREAS, Magnum Hunter has determined that it would be preferable to
use a Delaware corporation in the Merger and has organized Pintail-Delaware for
such purpose; and
WHEREAS, Magnum Hunter, Pintail-Texas, Prize and Pintail-Delaware
desire to amend the Agreement to reflect the substitution of Pintail-Delaware
for Pintail-Texas as a party thereto;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Magnum Hunter, Pintail-Texas, Prize and Pintail-Delaware do hereby
agree as follows:
1. The Agreement is hereby amended as follows:
(a) The first paragraph of the Agreement is amended to
substitute "Pintail Energy, Inc., a Delaware corporation" for Pintail Energy,
Inc., a Texas corporation."
(b) Section 1.1 of the Agreement is amended to delete the
definitions of "ARTICLES OF MERGER" and "TBCA" and to change the definition of
"MERGER SUB" to refer to "Pintail Energy, Inc., a Delaware corporation" rather
than to "Pintail Energy, Inc., a Texas corporation."
(c) Section 2.2 of the Agreement is amended to read in its
entirety as follows:
"2.2 EFFECT OF THE MERGER. Upon the effectiveness of the Merger, the
separate existence of Prize shall cease and Merger Sub, as the
surviving corporation in the Merger (the "SURVIVING CORPORATION"),
shall continue its corporate existence under the laws of the State of
Delaware. The Merger shall have the effects specified in this Agreement
and the DGCL."
(d) Section 2.3(a) of the Agreement is amended to read in its
entirety as follows:
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"(a) The certificate of incorporation of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the certificate of
incorporation of the Surviving Corporation until duly amended in
accordance with its terms and applicable law."
(e) Section 2.7 of the Agreement is amended to read in its
entirety as follows:
"2.7 EFFECTIVE TIME OF THE MERGER. The Merger shall become effective
immediately when the Certificate of Merger is accepted for filing by
the Secretary of State of Delaware, or at such time thereafter as is
provided in the Certificate of Merger (the "EFFECTIVE TIME"). As soon
as practicable after the Closing, the Certificate of Merger shall be
filed, and the Effective Time shall occur, on the Closing Date;
provided, however, that the Certificate of Merger may be filed prior to
the Closing Date or prior to the Closing so long as it provides for an
effective time that occurs on the Closing Date immediately after the
Closing."
(f) The first sentence of Section 2.8 of the Agreement is
amended to delete "and the TBCA."
(g) Clause (b) of Section 3.5 of the Agreement is amended to
read in its entirety as follows:
"the filing of the Certificate of Merger with the Secretary of State of
Delaware pursuant to applicable provisions of the DGCL;"
(h) Clause (b) of Section 4.5 of the Agreement is amended to
read in its entirety as follows:
"the filing of the Certificate of Merger with the Secretary of State of
Delaware pursuant to applicable provisions of the DGCL;"
(i) Exhibit 5.10, the Form of Affiliate Letter, is amended to
substitute "Pintail Energy, Inc., a Delaware corporation" for "Pintail Energy,
Inc., a Texas corporation" in the first paragraph thereof.
(j) Exhibit 5.14, the Form of Registration Rights Agreement,
is amended to substitute "Pintail Energy, Inc., a Delaware corporation" for
"Pintail Energy, Inc., a Texas corporation" in the first paragraph thereof.
2. Upon the execution of this Amendment, Pintail-Delaware will have all
the obligations, and will enjoy all the rights, of Pintail-Texas under the
Agreement, and Pintail-Texas will no longer be a party thereto or have any
rights or obligations thereunder.
3. This Amendment shall be effective as of December 17, 2001.
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IN WITNESS WHEREOF, Magnum Hunter, Pintail-Texas, Prize and
Pintail-Delaware have executed this Amendment as of the date first above
written.
MAGNUM HUNTER RESOURCES, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President, General Counsel
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and Secretary
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PINTAIL ENERGY, INC.,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President
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PRIZE ENERGY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Chairman and Chief Executive Officer
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PINTAIL ENERGY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President
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