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EXHIBIT 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of June 27, 2001 is among HS Resources, Inc., a Delaware
corporation ("Company"), Xxxx-XxXxx Corporation, a Delaware corporation
("Parent"), Xxxx-XxXxx Holdco, Inc. (formerly known as King Holdco, Inc.), a
Delaware corporation and wholly owned subsidiary of Parent ("Holdco"), HS
Resources Merger Sub, Inc. (formerly known as Hawk Merger Sub, Inc.), a
Delaware corporation and wholly owned subsidiary of Holdco ("Acquisition I"),
and Xxxx-XxXxx Merger Sub, Inc. (formerly known as King Merger Sub, Inc.), a
Delaware corporation and wholly owned subsidiary of Holdco ("Acquisition II"),
to the Agreement and Plan of Merger, dated as of May 13, 2001 (the "Original
Agreement"), among Company, Parent, Holdco, Acquisition I and Acquisition II.
WHEREAS, the parties to the Original Agreement desire to amend the
Original Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Amendment to the fourth WHEREAS clause of the Original Agreement.
The fourth WHEREAS clause is hereby amended by deleting the words "Company
Common Stock" in the third line thereof and inserting the text "shares of
common stock, par value $.001 per share, of the Company ("Company Common
Stock")".
2. Amendment to Section 1.7(a) of the Original Agreement. Section
1.7(a) is hereby amended by inserting the text "(other than Restricted Shares
and Performance Shares)" following the word Stock in the second line thereof.
3. Amendment to Section 1.7(a)(i) of the Original Agreement. Section
1.7(a)(i) is hereby amended by deleting the words "Holdco Common Stock" from
the second line thereof and inserting the text "shares of common stock, par
value $1.00 per share, of Holdco ("Holdco Common Stock")".
4. Amendment to Section 1.7(b) of the Original Agreement. Section
1.7(b) is hereby amended by inserting the text "other than Restricted Shares
and Performance Shares" following the word Stock the first time it appears in
the second line thereof.
5. Amendment to Section 1.11(b) of the Original Agreement. Section
1.11(b) is hereby amended by deleting the words "Parent Common Stock" from the
sixth line thereof and inserting the text "shares of common stock, par value
$1.00 per share, of Parent ("Parent Common Stock")".
6. Amendment to Section 2.2(b) of the Original Agreement. Section
2.2(b) is hereby amended by deleting the second to last sentence thereof and
inserting in its place the following: "The foregoing does not include the
rights outstanding (the "Rights") under the Rights Agreement by and between the
Company and Xxxxxx Trust Company of California, dated as of February 28, 1996
(the "Rights Agreement")."
7. Amendment and Restatement of Section 5.12 of the Original
Agreement. Section 5.12 shall be amended and restated to read in its entirety
as follows:
"5.12 Equity Awards. Prior to the Effective Time, the Company shall
take all actions necessary (including obtaining any necessary consents of the
holders of outstanding options, outstanding performance shares and outstanding
shares of restricted Company Common Stock) to provide that (i) on the first
business day following the Closing Date each outstanding option to purchase
shares of Company Common Stock (the "Company Options"), whether or not then
exercisable or vested, each outstanding performance share (a "Performance
Share") and each outstanding share of restricted Company Common Stock (a
"Restricted Share" and, together with a Company Option and a Performance Share,
an "Award") shall vest and be canceled and (ii) in consideration of the
cancellation, each holder of an Award shall be entitled to receive (A) with
respect to each Company Option, an amount in respect thereof equal to the
product of (1) the excess, if any, of the Per Share Amount over the exercise
price per share of such Company Option and (2) the number of shares of Company
Common Stock subject to such Company Option, (B) with respect to each
Performance Share, an amount in respect thereof equal to the Per Share Amount
and (C) with respect to each Restricted Share, an amount in respect thereof
equal to the Per Share Amount. Except as otherwise agreed in writing among the
holder of an Award, the Company and Holdco, the Company or Holdco shall make the
payments to which a holder is entitled pursuant to this Section 5.12 as soon as
practicable after the first business day following the Closing Date (in each
case net of the applicable withholding taxes)."
8. Authorization. This Amendment has been duly executed and delivered
by each party hereto and constitutes a valid and binding obligation of each
such party, enforceable in accordance with its terms, except to the extent that
its enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization or other laws affecting the enforcement of
creditors' rights generally or by general equitable principles.
9. No Other Amendments. Except as expressly amended hereby, the
provisions of the Original Agreement are and shall remain in full force and
effect.
10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
11. Counterparts and Effectiveness. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, and delivered by means of facsimile transmission or otherwise,
each of which when so executed and delivered shall be deemed to be an original
and all of which when taken together shall constitute but one and the same
agreement. If any party hereto elects to execute and deliver a counterpart
signature page by means of facsimile transmission, it shall deliver an original
of such counterpart to each of the other parties hereto within ten days of the
date hereof, but in no event will the failure to do so affect in any way the
validity of the facsimile signature or its delivery.
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SIGNATURE PAGE
IN WITNESS WHEREOF, Parent, Holdco, Company, Acquisition I and
Acquisition II have caused this Amendment to be executed as of the date first
written above.
HS RESOURCES, INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer and Director
XXXX-XxXXX CORPORATION
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
XXXX-XxXXX HOLDCO, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
XXXX-XxXXX MERGER SUB, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
HS RESOURCES MERGER SUB, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
