EXHIBIT 12(d)(2)
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment"), dated as of
---------
the 31st day of January, 2000, is by and among Plains Resources Inc., a Delaware
corporation (the "Company"), and the other parties signatory hereto
-------
(collectively, the "Purchasers").
----------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Purchasers purchased Series E Cumulative Convertible Preferred
Stock (the "Preferred Stock") of the Company pursuant to a Stock Purchase
---------------
Agreement dated as of July 30, 1998 by and among the Company and the purchasers
named therein (the "Stock Purchase Agreement"); and
------------------------
WHEREAS, the Purchasers are exchanging all of their shares of Preferred
Stock for an equal number of shares of Series G Cumulative Convertible Preferred
Stock (the "Series G Preferred Stock") of the Company as of the date hereof; and
------------------------
WHEREAS, the Purchasers and the Company desire that the Company make
certain representations to the Purchasers concerning this Amendment and the
Series G Preferred Stock and that the Series G Preferred Stock be entitled to
the same registration rights as the Preferred Stock;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties set forth in this Amendment, the parties to this
Amendment hereby agree as follows (capitalized terms used herein but not defined
herein shall have the meanings set forth in the Stock Purchase Agreement):
ARTICLE 1 - AMENDMENTS TO THE STOCK PURCHASE AGREEMENT
1.1 Definitions of Conversion Shares. The definition of Conversion Shares
--------------------------------
in Section 1.1 of the Stock Purchase Agreement shall be amended to read as
follows:
"Conversion Shares" means the shares of Common Stock issuable upon
conversion of Preferred Stock or Series G Preferred Stock into, or exchange
of Preferred Stock or Series G Preferred Stock for, Common Stock."
1.2 Definition of Series G Preferred Stock. Section 1.1 of the Stock
--------------------------------------
Purchase Agreement shall be amended to add a definition of Series G Preferred
Stock as follows:
"Series G Preferred Stock" shall mean the Series G Cumulative Convertible
Preferred Stock, par value $1.00 per share, of the Company."
1.3 Definition of Exchange Offer. Section 1.1 of the Stock Purchase
----------------------------
Agreement shall be amended to add a definition of Exchange Offer as follows:
"Exchange Offer" shall mean the Company's offer to exchange one share of
Series G Preferred Stock for each outstanding share of Series E Preferred
Stock."
1.4 Section 4.1(a). Section 4.1(a) of the Stock Purchase Agreement shall
--------------
be amended by adding a new second sentence to read as follows:
"The Company shall, as promptly as reasonably possible, but, in any event,
within 90 days of the closing of the Exchange Offer, either (i) prepare and file
with the SEC a new shelf registration statement on an appropriate form pursuant
to Rule 415 (or any similar provision that may be adopted by the SEC) under the
Securities Act with respect to the Registrable Securities or (ii) amend the
existing Shelf Registration Statement to cover the Conversion Shares issuable
upon conversion of the Series G Preferred Stock or (iii) file a prospectus
supplement relating to the Conversion Shares issuable upon conversion of the
Series G Preferred Stock; provided, that such action is in the opinion of
counsel to the Company sufficient to enable the Holders of Registrable
Securities to sell their Registrable Securities without restriction under the
Securities Act."
ARTICLE 2 - REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchasers as follows:
2.1 Organization. The Company and each of its Subsidiaries is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation.
2.2 Authority. The Company has all requisite corporate power and
authority to carry on its business as presently conducted and to enter into this
Amendment and to perform its obligations contemplated hereunder.
2.3 Authorization. The execution, delivery and performance of this
Amendment and the transactions contemplated hereby have been duly and validly
authorized by all requisite corporate action on the part of the Company and its
stockholders.
2.4 Binding Agreement. This Amendment has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company, enforceable against it in accordance with its terms, subject to
applicable bankruptcy and other similar laws of general application with respect
to creditors and subject to principles of equity and public policy that affect
enforceability of agreements generally.
2.5 No Conflicts. Neither the execution nor delivery of this Amendment,
nor the consummation of the transactions contemplated hereby, including the
Exchange Offer, will result in a breach or violation of, or constitute a default
under, the certificate of incorporation, bylaws or other governing documents of
the Company or its Subsidiaries, or any agreement, indenture or other
instrument to which any of the Company or its Subsidiaries is a party or by
which any of them is bound or to which any of their properties are subject, nor
will the performance by the Company and its Subsidiaries of any of their
obligations hereunder violate any Law or result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property or assets of the
Company or its Subsidiaries. No permit, consent, approval, authorization or
order of any Governmental Authority or other Person is required in connection
with the consummation by the Company and its Subsidiaries of the transactions
contemplated by this Amendment, except such as have been obtained.
2.6 Valid Issuance.
(a) The issuance and delivery of the shares of Series G Preferred
Stock in the Exchange Offer, and the making of the Exchange Offer, have been
duly authorized by all necessary corporate action on the part of the Company and
its stockholders, and the shares of Series G Preferred Stock, when so issued and
delivered in exchange for the shares of Preferred Stock in accordance with the
terms of the Exchange Offer, will be duly and validly issued, fully paid and
nonassessable.
(b) The issuance and delivery of the Conversion Shares have been
duly authorized by all necessary corporate action on the part of the Company and
its stockholders, and the Conversion Shares have been duly reserved for issuance
and, when issued, will be duly and validly issued, fully paid and nonassessable.
2.7 Absence of Bankruptcy Proceedings. There are no bankruptcy,
reorganization or arrangement proceedings pending against, being contemplated
by, or to the knowledge of the Company, threatened against, the Company or any
of is Subsidiaries.
2.8 Offering. The offer and issuance of the shares of Series G
Preferred Stock and the Conversion Shares as contemplated by the Exchange Offer
are exempt from the registration requirements of the Securities Act and the
securities laws of any state having jurisdiction over such offer and issuance,
and neither the Company nor anyone acting on its behalf has or will take any
action that would cause the loss of such exemption.
2.9 No Defaults. Neither the Company nor any Subsidiary is (a) in
violation of any provision of its charter or bylaws or other governing
documents, (b) in breach, violation or default, in any material respect, of or
under any material contract, lease, commitment or instrument to which it is a
party or by which it is bound or to which any of its properties or assets are
subject, and no event has occurred which (whether with or without notice, lapse
of time or the happening or occurrence of any other event) would constitute such
a breach, violation or default or (c) in material violation of any Law.
2.10. Litigation. There is no action, suit, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the
Company or its Subsidiaries or any
properties or rights of any of them by or before any Governmental Authority that
(i) relates to or challenges the legality of this Amendment or the Series G
Preferred Stock, (ii) would reasonably be expected to have a Material Adverse
Effect upon the Company (except as disclosed in the Commission Documents) or
(iii) would reasonably be expected to impair the ability of the Company to
perform fully on a timely basis any obligations that it has under this Amendment
or any documents related thereto.
3. Continuation of Stock Purchase Agreement. Except as set forth above,
----------------------------------------
the Stock Purchase Agreement shall continue in full force and effect without
amendment.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED AND
-------------
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
RULES CONCERNING CONFLICTS OF LAWS.
4. Counterparts. This Amendment may be executed in any number of
------------
counterparts, and each and every counterpart shall be deemed for all purposes
one agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their duly authorized officers as of the date first above written.
PLAINS RESOURCES INC.
By _____________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
THE PURCHASERS
The Purchasers pursuant to the powers of attorney
executed in favor of and granted and delivery to
Plains Resources Inc.
By: Plains Resources Inc.
By _____________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
