EXHIBIT 12(a)(5)(ii)
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment"), dated
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as of the 28th day of December, 2000, is by and among Plains Resources Inc., a
Delaware corporation (the "Company"), and the other parties signatory hereto
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(collectively, the "Purchasers").
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W I T N E S S E T H:
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WHEREAS, the Purchasers purchased Series E Cumulative Convertible Preferred
Stock (the "Preferred Stock") of the Company pursuant to the Stock Purchase
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Agreement dated as of July 30, 1998 by and among the Company and the purchasers
named therein (the "Stock Purchase Agreement");
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WHEREAS, the Purchasers exchanged 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, and entered into that certain
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Amendment to Stock Purchase Agreement dated as of January 31, 2000 by and among
the Company and the purchasers named therein (the "First Amendment to Stock
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Purchase Agreement") entitling the Series G Preferred Stock to the same
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Registration Rights as the Preferred Stock;
WHEREAS, the Purchasers are exchanging shares of Series G Preferred Stock
for an equal number of shares of Series H Convertible Preferred Stock (the
"Series H Preferred Stock") of the Company as of the date hereof; and
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WHEREAS, the Purchasers and the Company desire that the Company make
certain representations to the Purchasers concerning this Amendment and the
Series H Preferred Stock and that the holders of Series H Preferred Stock be
entitled to the same registration rights as they enjoyed with respect to their
shares of Series G 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
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in Section 1.1 of the Stock Purchase Agreement shall be amended to read as
follows:
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"'Conversion Shares' means the shares of Common Stock issuable upon
conversion of Preferred Stock, Series G Preferred Stock, or Series H
Preferred Stock into, or exchange of Preferred Stock, Series G Preferred
Stock, or Series H Preferred Stock for, Common Stock."
1.2 Definition of Series H Preferred Stock. Section 1.1 of the Stock
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Purchase Agreement shall be amended to add a definition of Series H Preferred
Stock as follows:
"'Series H Preferred Stock' shall mean the Series H Convertible Preferred
Stock, par value $1.00 per share, of the Company."
1.3 Definition of Second Exchange Offer. Section 1.1 of the Stock
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Purchase Agreement shall be amended to add a definition of Second Exchange Offer
as follows:
"'Second Exchange Offer' shall mean the Company's offer to exchange one
share of Series H Preferred Stock for each outstanding share of Series G
Preferred Stock."
1.4 Section 4.1(a). Section 4.1(a) of the Stock Purchase Agreement shall
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be amended by adding a new third 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 Second 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 H Preferred Stock or (iii) file a
prospectus supplement relating to the Conversion Shares issuable upon conversion
of the Series H 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.
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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
Second 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 H Preferred
Stock in the Second Exchange Offer, and the making of the Second 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 H Preferred Stock, when
so issued and delivered in exchange for the shares of Series G Preferred Stock
in accordance with the terms of the Second 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 H Preferred
Stock and the Conversion Shares as contemplated by the Second Exchange Offer are
exempt from the registration
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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 H 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 and First Amendment to Stock
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Purchase Agreement. Except as set forth above, the Stock Purchase Agreement and
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the First Amendment to Stock Purchase Agreement shall continue in full force and
effect without amendment.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED AND
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ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
RULES CONCERNING CONFLICTS OF LAWS.
5. Counterparts. This Amendment may be executed in any number of
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counterparts, and each and every counterpart shall be deemed for all purposes
one agreement.
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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: ______________________________________
Title: ______________________________________
THE PURCHASERS
The Purchasers pursuant to the powers of attorney
executed in favor of and granted and delivered to
Plains Resources Inc.
By: Plains Resources Inc.
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
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