EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (this "Amendment") dated as of January 15,
2002 to that certain Agreement and Plan of Merger (the "Merger Agreement") dated
as of December 16, 2001, by and among ENERGY PARTNERS, LTD., a Delaware
corporation ("Buyer"), SAINTS ACQUISITION SUBSIDIARY, INC., a Texas corporation
and wholly owned subsidiary of Buyer ("Newco"), and XXXX-XXXXXXX OIL COMPANY, a
Texas corporation (the "Company").
RECITALS
Pursuant to Sections 5.9 and 10.5 of the Merger Agreement, the
parties hereby amend the Merger Agreement.
All capitalized terms used herein and not defined shall have
the meanings provided therefor in the Merger Agreement.
AGREEMENTS
Accordingly, in consideration of the recitals and of the
respective covenants, representations, warranties and agreements herein
contained, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
AMENDMENTS
Section 1.1 Amendments to the Merger Agreement. The Merger
Agreement is hereby amended as follows:
(a) Section 2.2 is amended by deleting the entire text of
Section 2.2(b) and replacing it with the following:
(b) Except as set forth in Section 2.2(a),
each share of (i) Company Common Stock shall be entitled to
receive (x) $0.047237 in cash, (y) 0.2361842 $11 Buyer
Warrants and (z) 0.078728 $9 Buyer Warrants (the consideration
provided for in (x), (y) and (z), collectively, the "Common
Stock Merger Consideration"), (ii) Company Preferred Stock
which has not been converted into Common Stock or redeemed
prior to the Closing shall be entitled to receive (w)
$1.249736 in cash, (x) a pro rata share of 75% of the Earnout,
(y) 6.248681 $11 Buyer Warrants and (z) 2.082894 $9 Buyer
Warrants (the consideration provided for in (w), (x), (y) and
(z), together, "Preferred Stock Merger Consideration") and
(iii) each share of New
Company Preferred Stock shall be entitled to receive a pro
rata share of (x) 25% of the Earnout, (y) 375,000 $11 Buyer
Warrants and (z) 125,000 $9 Buyer Warrants (the consideration
provided for in (x), (y) and (z), together, the "Working
Interest Merger Consideration" and, together with the Common
Stock Merger Consideration and the Preferred Stock Merger
Consideration, the "Merger Consideration").
(b) Section 5.9 is deleted in its entirety.
(c) Section 9.1 is amended (i) by adding the following
definition, in the appropriate order of the existing defined terms:
"Working Interest Purchase Agreement Amendment" means
the Assignment and Amendment dated January 11, 2002 to the
Working Interest Purchase Agreement.
and; (ii) by deleting the following defined terms and replacing them with the
following definitions:
"Company Capital Stock" means, collectively, the
Company Common Stock, the Company Preferred Stock and the New
Company Preferred Stock.
"New Company Preferred Stock" means the 2002
preferred stock, par value $0.01 per share, of the Company.
"Working Interest Purchase Agreement" means the
Purchase and Sale Agreement dated as of December 16, 2001 by
and between Buyer and the holders of certain Affiliate
Interests other than the Royalty Trusts, in the form set forth
on Exhibit G-1, as amended by the Working Interest Purchase
Agreement Amendment.
(d) The Company Disclosure Schedule is hereby amended and
supplemented to reflect the transactions contemplated by this Amendment and the
Working Interest Purchase Agreement Amendment, and Buyer and Newco hereby accept
such amendment and supplement.
ARTICLE II
MISCELLANEOUS
Section 2.1 Conditions to Effectiveness. This Amendment will
become effective when, and only when, (a) Buyer, Newco and the Company shall
have received counterparts of this Amendment executed by the other parties
thereto and (b) the Working Interest Purchase Agreement Amendment shall have
become effective according to its terms.
Section 2.2 References. Any and all references to the Merger
Agreement and the Company Disclosure Schedule shall refer to such documents as
amended by this Amendment.
-2-
Section 2.3 Governing Law. This Amendment shall be construed
and enforced in accordance with and governed by the internal laws of the State
of Delaware without giving effect to principles of conflicts of laws thereof.
Section 2.4 Arbitration. Any dispute, controversy or claim
arising out of or in relation to or in connection with this Amendment shall be
subject to arbitration and to mandatory choice of judicial forum in the same
fashion and to the same extent as disputes arising out of the Merger Agreement,
as provided in Section 10.10 of the Merger Agreement.
Section 2.5 Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed to be an original and
all of which together shall constitute a single instrument.
[Signature Pages Follow]
-3-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as of the day and
year first above written.
THE COMPANY:
XXXX-XXXXXXX OIL COMPANY
By:
--------------------------------------
Name:
Title:
BUYER:
ENERGY PARTNERS, LTD.
By:
--------------------------------------
Name:
Title:
NEWCO:
SAINTS ACQUISITION SUBSIDIARY, INC.
By:
--------------------------------------
Name:
Title:
-4-
