EXHIBIT 10.12
AMENDMENT NO. 2
TO
MERGER AGREEMENT
AMENDMENT NO. 2, dated as of February 15, 2006, to the Agreement and
Plan of Merger ("Merger Agreement"), dated as of October 20, 2005, by and among
Tremisis Energy Acquisition Corporation, RAM Energy Acquisition, Inc., RAM
Energy, Inc. ("RAM"), and each of the Stockholders of RAM, as amended by
Amendment No. 1 thereto dated November 11, 2005.
IT IS HEREBY AGREED that the Merger Agreement, as heretofore amended,
is further amended as follows:
1. Section 1.6(a), as heretofore amended, is hereby amended to
read as follows:
"(a) Conversion of Company Common Stock. Other than any shares to be
canceled pursuant to Section 1.6(c), each share of common stock, par
value $10.00, of the Company ("Company Common Stock") issued and
outstanding immediately prior to the Effective Time will be
automatically converted (subject to Section 1.6(f)) into the right to
receive on the Closing Date (i) that number of shares of common stock,
par value $0.0001, of Parent ("Parent Common Stock") determined by
dividing the Aggregate Parent Common Stock Number by the Outstanding
Company Stock Number, and (ii) that amount of cash determined by
dividing the Aggregate Cash Number by the Outstanding Company Stock
Number. The term "Aggregate Parent Common Stock Number" shall mean
25,600,000. The term "Outstanding Company Stock Number" shall mean the
number of shares of Company Common Stock outstanding on the Closing
Date, after giving effect to all stock option exercises contemplated
hereby. The term "Aggregate Cash Number" shall mean the lesser of (I)
$30,000,000, and (II) the amount of cash distributed to Parent from the
Trust Fund at the Closing (after payment to those stockholders of
Parent who elect to have their shares converted to cash in accordance
with Parent's Charter Documents (as defined in Section 2.1(a)), less
the sum of all expenses reasonably incurred by Parent in connection
with the transaction contemplated hereby."
2. Section 3.15(c) is hereby amended to read as follows:
"(c) Parent has not been delinquent in the payment of any material Tax
that has not been accrued for in Parent's books and records of account
for the period for which such Tax relates nor is there any material Tax
deficiency outstanding, proposed or assessed against Parent, nor has
Parent executed any unexpired waiver of any statute of limitations on
or extending the period for the assessment or collection of any Tax."
3. The last sentence of paragraph (d) of Schedule 4.1 is hereby
amended to read as follows:
"Prior to the Closing, the Company will continue to pay ordinary
quarterly dividends to
the Stockholders consistent with historical practices and with the
restrictions imposed under the Loan Agreement, including payment of a
$500,000 dividend during the fourth quarter of 2005 and a $500,000
dividend during the first quarter of 2006."
4. A new Section 5.19 is hereby added to the Merger Agreement,
to read as follows:
"5.19 Stockholder Obligations. The Stockholders shall repay to the
Company, on or before the Closing, all direct and indirect indebtedness
and obligations owed by them to the Company, including the indebtedness
and other obligations described in Schedule 2.22 and all other amounts
owed by REPCO (as defined in Schedule 2.22) to the Company."
5. Section 6.3(i), as heretofore amended, is hereby amended to
read as follows:
"(i) Company Indebtedness. The Adjusted Indebtedness for Borrowed Money
of the Company, including the Subsidiaries, shall not exceed
$125,000,000. As used herein, the term "Adjusted Indebtedness for
Borrowed Money" shall mean the sum of all indebtedness of the Company
for borrowed money, less (1) the amount of any cash deposits posted by
the Company as security in connection with outstanding Company hedging
contracts, (2) the positive difference, if any, between $30,000,000 and
the Aggregate Cash Number, (3) an amount up to $6.0 million for
aggregate fees, costs and expenses paid by the Company in connection
with replacing, enhancing or improving its existing credit facilities
in a manner that, on the whole, is quantitatively more beneficial to
the Company and (4) capital expenditures incurred by the Company after
March 1, 2006."
6. A new Section 6.3(k) is hereby added to the Merger Agreement,
to read as follows:
"(k) Stockholder Obligations. The Stockholders shall have repaid to the
Company, on or before the Closing, all direct and indirect indebtedness
and obligations owed by them to the Company, including the indebtedness
and other obligations described in Schedule 2.22 and all other amounts
owed by REPCO (as defined in Schedule 2.22) to the Company."
7. The last sentence of Section 7.4(b) is hereby amended to read
as follows:
"Notwithstanding the foregoing, payments made with respect to
indemnifiable Losses arising out of the Great Plains Claim shall not be
applied toward the Deductible and the Deductible shall not apply to
indemnifiable Losses arising out of the Great Plains Claim."
8. Section 8.1(b) is hereby amended to read as follows:
"(b) by either Parent or the Company if the Proxy Statement shall not
have been mailed to the record owners of Parent Common Stock on or
before April 27, 2006."
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to the Merger Agreement to be executed as of the date first written above.
TREMISIS ENERGY ACQUISITION CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Chairman & CEO
RAM ENERGY ACQUISITION, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Xxxxxxxx X. Xxxxx
Chairman & CEO
RAM ENERGY, INC.
By: /s/ Xxxxx X. Xxx
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Xxxxx X. Xxx
President & CEO
STOCKHOLDERS:
[SEE SEPARATE SIGNATURE PAGES.]
STOCKHOLDER SIGNATURE PAGE TO AMENDMENT NO. 2
TO MERGER AGREEMENT
/s/ Xxxxx X. Xxx
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Xxxxx X. Xxx
DANISH KNIGHTS, A LIMITED PARTNERSHIP,
A Texas Limited Partnership
By: Dannebrog Corp., General Partner
By: /s/ Xxxxxxx Xxxxxx Xxxxxx
-------------------------
Xxxxxxx Xxxxxx Xxxxxx
President
The undersigned agrees that, upon exercise of the stock option referred to in
Section 1.13 of the Merger Agreement, he shall be considered to be, and shall
be, a Stockholder (as defined therein) for all purposes of such Merger
Agreement, as amended hereby.
/s/ C. Xxxxx Xxxxxxx
--------------------
C. Xxxxx Xxxxxxx
