Exhibit 2.2
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
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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 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);"
(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"
(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 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
WESTERN GAS RESOURCES, INC.
By: /s/ Xxxxx X. Dea
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Name: Xxxxx X. Dea
Title: Chief Executive Officer and President
APC MERGER SUB, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
