Exhibit 2.1
SECOND AMENDMENT TO
AGREEMENT
AND
PLAN OF MERGER
by and among
CODA ACQUISITION, INC.,
JOINT ENERGY DEVELOPMENT INVESTMENTS
LIMITED PARTNERSHIP
and
CODA ENERGY, INC.
Dated as of January 10, 1996
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT (this "Second Amendment") TO AGREEMENT AND PLAN OF
MERGER, dated as of January 10, 1996, by and among Coda Acquisition, Inc., a
Delaware corporation ("Sub"), Coda Energy, Inc., a Delaware corporation (the
"Company") and Joint Energy Development Investments Limited Partnership, a
Delaware limited partnership ("JEDI"):
W I T N E S S E T H:
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WHEREAS, Sub, the Company and JEDI have entered into that certain Agreement
and Plan of Merger dated as of October 30, 1995 (the "Agreement") providing for
the merger of Sub with and into the Company (the "Merger");
WHEREAS, Sub, the Company and JEDI have entered into that certain Amendment
to Agreement and Plan of Merger dated as of December 22, 1995 (the "First
Amendment");
WHEREAS, Sub, the Company and JEDI now desire to amend the Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used in this Second
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Amendment, to the extent not otherwise defined herein, shall have the same
meanings as in the Agreement as amended by the First Amendment and hereby.
ARTICLE II
AMENDMENTS
Section 2.1 Amendment to Exhibit 2.1. Effective as of the date hereof,
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Exhibit 2.1 of the Agreement is hereby amended and restated in its entirety as
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set forth in the attached Exhibit 2.1.
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Section 2.2 Amendment to Schedule 3.6(a)(1). Effective as of the date
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hereof, Schedule 3.6(a)(1) of the Agreement is hereby amended and restated in
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its entirety as set forth in the attached Schedule 3.6(a)(1).
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Section 2.3 Amendment to Section 9.3(a). Effective as of the date
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hereof, Section 9.3(a) of the Agreement is hereby amended by adding to the end
of the section the following parenthetical phrase:
"(other than dividends or other distributions paid in respect of the 15%
Cumulative Preferred Stock of the Surviving Corporation)."
ARTICLE III
MISCELLANEOUS
Section 3.1 Ratifications. The terms and provisions set forth in this
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Second Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Agreement, as amended, and except as expressly
modified and superseded by this Second Amendment, the terms and provisions of
the Agreement, as amended, are ratified and confirmed and shall continue in full
force and effect. Sub, the Company and JEDI agree that this Second Amendment
is, and the Agreement as amended by the First Amendment and hereby shall
continue to be, legal, valid, binding and enforceable in accordance with its
respective terms.
Section 3.2 Representations and Warranties. Each of Sub, the Company
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and JEDI hereby represents and warrants to the other of such parties that the
execution, delivery and performance of this Second Amendment has been authorized
by all requisite corporate action on the part of each of Sub, the Company and
JEDI and will not violate its articles or certificate of incorporation, bylaws
or partnership agreement, as applicable, and the Company hereby represents and
warrants to Sub and JEDI that the Company has received oral or written
confirmation, in form and substance acceptable to the Special Committee and to
the Board of Directors of the Company, from Bear, Stearns & Co., Inc., financial
advisor to the Company, that the Merger, based on the revised Merger
Consideration, is fair to the stockholders of the Company from a financial point
of view (except that such advice was not provided to management stockholders who
will participate in the equity ownership of the Surviving Corporation).
Section 3.3 Reference to Agreement. The Agreement is hereby amended so
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that any reference therein to the Agreement shall mean a reference to the
Agreement as amended by the First Amendment and hereby.
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IN WITNESS WHEREOF, Sub, JEDI and the Company have caused this Second
Amendment to be signed by their respective officers thereunder duly authorized
all as of the date first written above.
CODA ACQUISITION, INC.
By: /s/ C. John Thompson
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Name: C. John Thompson
Title: Vice President
CODA ENERGY, INC.
By: /s/ Douglas H. Miller
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Name: Douglas H. Miller
Title: Chairman of the Board and Chief
Executive Officer
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP
By: Enron Capital Management
Limited Partnership, its general partner
By: Enron Capital Corp., its general partner
By: /s/ C. John Thompson
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Name: C. John Thompson
Title: Agent and Attorney-in-Fact
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