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EXHIBIT 2.7.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made and entered into this 31st day of October, 2000, by and
among CHESAPEAKE ENERGY CORPORATION, an Oklahoma corporation ("Parent"),
CHESAPEAKE MERGER 2000 CORP., an Oklahoma corporation ("Sub"), and GOTHIC ENERGY
CORPORATION, an Oklahoma corporation ("Gothic").
RECITALS
WHEREAS, on September 8, 2000, the parties entered into an
Agreement and Plan of Merger (the "Merger Agreement") providing for the merger
of Sub into Gothic (the "Merger");
WHEREAS, the parties have determined that the Merger Agreement
will be amended to: (a) specifically provide that the Gothic Stock Options and
Gothic Warrants to be assumed by Parent pursuant to the Merger Agreement will
not become part of any Parent Benefit Plan; (b) provide that the holders of the
Gothic Preferred Stock will not be entitled to vote on the Merger; and (c)
evidence that the Parent has made the good faith determinations required under
paragraph 5.6 of the Merger Agreement regarding federal income tax treatment of
the Merger as a tax free "reorganization" within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended; and
WHEREAS, pursuant to paragraph 8.2 of the Merger Agreement the
parties now mutually desire to amend the Merger Agreement as set forth below;
NOW, THEREFORE, for and in consideration of the recitals and the
mutual covenants and agreements set forth in the Merger Agreement and this
Amendment, the parties hereto hereby amend the Merger Agreement as follows:
1. Definitions. Unless the context otherwise requires or unless otherwise
expressly defined herein, the terms defined in the Merger Agreement will have
the same meanings whenever used in this Amendment.
2. Amendments. Parent, Sub and Gothic hereby amend the Merger Agreement as
follows:
2.1 Amendment of Paragraph 2.3.1. The last sentence of paragraph
2.3.1 of the Merger Agreement is hereby deleted in its
entirety.
2.2 Amendment of Paragraph 2.3.4. Paragraph 2.3.4 of the Merger
Agreement is hereby amended by the addition to the end of such
paragraph of the following sentence:
"Notwithstanding the Parent's assumption of the Gothic Stock
Options and the Gothic Warrants pursuant to this paragraph
2.3.4, the parties acknowledge and agree that such assumption
will not result in any such Gothic Stock Option or Gothic
Warrant becoming subject to or covered by any Parent Benefit
Plan nor will any holder thereof be entitled to any of the
rights or benefits of any Parent Benefit Plan."
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2.3 Amendment of Paragraph 3.17. Paragraph 3.17 of the Merger
Agreement is hereby amended by the deletion of the words "and
Gothic Preferred Stock voting as one class" from the second
line of such paragraph.
2.4 Amendment of Paragraph 3.18. Subpart (c) of paragraph 3.18 of
the Merger Agreement is hereby amended by the deletion of the
words "and Gothic Preferred Stock" from the seventh line of
such paragraph.
2.5 Amendment of Paragraph 6.1.1. Paragraph 6.1.1 of the Merger
Agreement is hereby amended by the deletion of the words "and
Gothic Preferred Stock voting as one class" from the last line
of such paragraph.
2.6 Amendment of Paragraph 7.1.2. Subpart (c) of paragraph 7.1.2
of the Merger Agreement is hereby amended by the deletion of
the words "and Gothic Preferred Stock voting as one class"
from the third and second to the last line of such paragraph.
2.7 Acknowledgment of Paragraph 5.6 Determination. The Parent
hereby acknowledges that as of the date of this Amendment the
Parent has, in good faith, determined that: (a) the Merger
should be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the
Code; (b) each of Parent and Sub should be a party to such
reorganization within the meaning of Section 368(b) of the
Code; and (c) no gain or loss should be recognized by Parent
or Sub as a result of the Merger.
3. Miscellaneous. It is further agreed as follows:
3.1 Effectiveness. This Amendment will become effective as of the
date first above written when executed by the Parent, the Sub
and Gothic.
3.2 Ratification of Merger Agreement. The Merger Agreement as
hereby amended and each other document, instrument or
agreement executed in connection therewith hereby are ratified
and confirmed in all respects. Any reference to the Merger
Agreement in any other document shall be deemed to be a
reference to the Merger Agreement as hereby amended. The
execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver
of any obligation, right, power or remedy of any of the
parties to the Merger Agreement nor constitute a waiver of any
provision of the Merger Agreement or any other related
documents.
3.3 Counterparts. This Amendment may be executed in two or more
counterparts, all of which will be considered one and the same
agreement and will become effective when two or more
counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
3.4 Applicable Law. This Amendment will be governed in all
respects, including validity, interpretation and effect, by
the laws of the State of Oklahoma regardless of the laws that
might otherwise govern under applicable principles of
conflicts of laws thereof.
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3.5 Full Force and Effect. In all respects, except as specifically
amended hereby, the Merger Agreement remains in full force and
effect and unabated and the Parent, Sub and Gothic hereby
reaffirm each and every representation, warranty, covenant or
condition made in the Merger Agreement as if and to the same
extent as if made on the date of the execution of this
Amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of
the date first above written.
GOTHIC ENERGY CORPORATION, an Oklahoma
corporation
By /s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx, President
("Gothic")
CHESAPEAKE ENERGY CORPORATION, an
Oklahoma corporation
By /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Executive
Vice President
("Parent")
CHESAPEAKE MERGER 2000 CORP., an
Oklahoma corporation
By /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Vice President
("Sub")
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