Exhibit 99.3
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
THIS AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT (this "Amendment") is
entered into as of January 10, 1996, among Coda Acquisition, Inc., a Delaware
corporation ("Sub"), and the Persons (as defined in the Stockholders Agreement
referred to below) listed on Schedule I hereto.
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W I T N E S S E T H:
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WHEREAS, Sub and the Persons listed on Schedule I hereto have entered into
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the Stockholders Agreement dated as of October 30, 1995 (the "Stockholders
Agreement");
WHEREAS, concurrently with the execution and delivery of the Stockholders
Agreement, Sub, Joint Energy Development Investments Limited Partnership, a
Delaware limited partnership ("JEDI"), and Coda Energy, Inc., a Delaware
corporation (the "Corporation"), entered into an Agreement and Plan of Merger
(the "Original Merger Agreement") providing for the merger of Sub with and into
the Corporation (the "Merger"), with the Corporation to be the surviving
corporation of the Merger;
WHEREAS, the parties to the Original Merger Agreement (i) have entered into
the Amendment to Agreement and Plan of Merger dated as of December 22, 1995, and
(ii) concurrently with the execution and delivery of this Amendment, have
entered into the Second Amendment to Agreement and Plan of Merger (together, the
"Merger Agreement Amendments");
WHEREAS, upon the consummation of the Merger, the Initial Parties (as
defined in the Stockholders Agreement) shall receive shares of Common Stock (as
defined in the Stockholders Agreement) and/or Common Stock Equivalents (as
defined in the Stockholders Agreement);
WHEREAS, immediately following the Merger, JEDI will subscribe and pay for
and be issued shares of the Preferred Stock (as defined herein); and
WHEREAS, the parties hereto desire to amend the Stockholders Agreement to
provide for, among other things, certain changes required by the terms of the
Merger Agreement Amendments.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. References to Original Merger Agreement. All references in the
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Stockholders Agreement (including references in the schedules and exhibits
thereto) to the "Merger Agreement" shall refer to the Original Merger Agreement
as amended by the Merger Agreement Amendments.
2. Preferred Stock. The following is hereby added to Section 1.1 of
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the Stockholders Agreement as an additional definition:
"Preferred Stock" means shares of the 15% Cumulative Preferred Stock,
par value $.01 per share, of the Corporation or Successor Corporation
issued and outstanding from time to time after the consummation of the
Merger and all securities of the Corporation or any other Person issued in
respect of shares of such preferred stock in connection with any exchange,
merger, recapitalization, consolidation, reclassification, reorganization,
stock dividend or distribution or other transaction to which the
Corporation is a party, but excluding any shares or securities which cease
to be outstanding.
3. Certain Employee Matters. Section 2.4 of the Stockholders
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Agreement is hereby amended to delete the reference to "2,000" and replace it
with "1,900".
4. Certain Stock Purchase Rights. The last sentence of Section 3.1 of
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the Stockholders Agreement is hereby amended to delete the word "and"
immediately before "(v)" in such sentence and by adding the following at the end
of such sentence immediately before the period:
; (vi) issuances of Capital Stock to the Initial Parties in connection with
the Merger; and (vii) the issuance of 20,000 shares of Preferred Stock to
JEDI following the Merger as contemplated in the Subscription Agreement
among Sub, JEDI, and the Management Investors dated as of October 30, 1995,
as amended, and issuances of Preferred Stock to the holder or holders of
the Preferred Stock as a dividend thereon as permitted by the terms of the
Preferred Stock set forth in the Certificate of Incorporation of the
Corporation, as amended from time to time.
5. Purchase of Preferred Stock. JEDI hereby agrees that as soon as
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reasonably practicable after the Effective Time, it shall make a capital
contribution to the Corporation in the amount of $20,000,000 in consideration
for the issuance to JEDI of 20,000 shares of the Preferred Stock (it being
understood that JEDI shall have no such obligation unless and until the
Effective Time occurs).
6. Special Management Rights.
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(a) The second sentence of Section 6.4(c) of the Stockholders Agreement is
hereby deleted in its entirety and replaced with the following:
The factors included in Schedule V assume that the Corporation pays no
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dividends or distributions (other than on the Preferred Stock) and does not
repurchase any of the Initial Shares from the Effective Time through the
Trigger Event.
(b) The last sentence of Section 6.4(c) of the Stockholders Agreement is
hereby deleted in its entirety and replaced with the following:
If the Parties do not so amend Schedule V following any such event and the
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Trigger Event occurs prior to Schedule V being amended to take such event
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into account, the "Excess Proceeds" shall be deemed to mean the amount of
proceeds to the Relevant Investors as a result of the Trigger Event,
determined as specified in Section 6.3, above the amount of proceeds
necessary for an internal rate of return of 15% on the Initial Investment,
taking into account any such dividends, distributions or share repurchases.
7. Schedule I. Schedule I to the Stockholders Agreement is hereby
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deleted in its entirety and replaced with Schedule I to this Amendment.
8. Schedule II.
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(a) The definition of "Discretionary Cash Flow" in Schedule II to the
Stockholders Agreement is hereby deleted in its entirety and replaced with the
following:
"Discretionary Cash Flow" with respect to the Corporation and each
Peer Company means net income, excluding any income from discontinued
operations or extraordinary, one-time, or non-recurring items, (i) plus
all non-cash charges before changes in working capital subtracted in
calculating net income (including without limitation depreciation,
depletion, amortization, amortization of deferred revenue from volumetric
production payments, deferred taxes, exploration expense, dry hole and
abandonment expenses, and losses on the sale of assets), (ii) plus, without
duplication, any compensation expense relating to Special Management
Rights, stock options or stock repurchase rights, (iii) minus all non-cash
gains included in net income (including without limitation gains on the
sale of assets), and (iv) minus the amount of any dividends on
nonconvertible preferred stock accrued and actually paid to the holder or
holders thereof.
(b) The definition of "Enterprise Value" in Schedule II to the
Stockholders Agreement is hereby deleted in its entirety and replaced with the
following:
"Enterprise Value" means, with respect to each Peer Company, the
product of the per-share Market Price of such Peer Company's common stock
as of the day prior to the date of the determination of the Fair Market
Value multiplied by the number of Fully-Diluted Shares of such Peer Company
(i) less the amount of Cash and Cash Equivalents
reflected in the Latest Balance Sheet of such Peer Company, (ii) plus such
Peer Company's Debt as reflected in the Latest Balance Sheet of such Peer
Company, (iii) plus any preferred stock unless it is included in Common
Stock Equivalents and the determination of Fully Diluted Shares, and (iv)
plus any minority interest.
(c) Schedule II-A. Schedule II-A to the Stockholders Agreement and the
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associated tables attached thereto are hereby deleted in their entirety and
replaced with Schedule II-A to this Amendment and the associated tables attached
thereto.
9. Schedule III-A. Schedule III-A to the Stockholders Agreement is
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hereby deleted in its entirety and replaced with Schedule III-A to this
Amendment.
10. Ratification. The terms and provisions set forth in this
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Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Stockholders Agreement and except as expressly modified and
superseded by this Amendment, the terms and provisions of the Stockholders
Agreement are ratified and confirmed and shall continue in full force and
effect. The parties hereto agree that this Amendment is, and the Stockholders
Agreement as amended hereby shall continue to be, legal, valid, binding and
enforceable in accordance with its respective terms.
11. References to Stockholders Agreement. The Stockholders
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Agreement is hereby amended so that any reference therein to the Stockholders
Agreement shall mean a reference to the Stockholders Agreement as amended
hereby.
12. Counterparts. This Amendment may be executed in two or more
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counterparts and each counterpart shall be deemed to be an original and which
counterparts together shall constitute one and the same agreement of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written, but effective for all purposes as of the Effective
Time (as defined in the Stockholders Agreement).
CODA ACQUISITION, INC.
By: /s/ C. John Thompson
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Name: C. John Thompson
Title: Vice President
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
MANAGEMENT INVESTOR SPOUSES: MANAGEMENT INVESTORS:
/s/ Debbie Bodenhamer /s/ Randell A. Bodenhamer
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Debbie Bodenhamer Randell A. Bodenhamer
/s/ Karan Callaway /s/ Joe I. Callaway
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Karan Callaway Joe I. Callaway
/s/ Cathy Choisser /s/ J. David Choisser
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Cathy Choisser J. David Choisser
/s/ Ryan Freeman /s/ J. W. Freeman
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Ryan Freeman J. W. Freeman
/s/ Sharon Harney /s/ Roy G. Harney
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Sharon Harney Roy G. Harney
/s/ Jill Henderson /s/ Grant W. Henderson
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Jill Henderson Grant W. Henderson
/s/ Jana Hensley /s/ Jarvis A. Hensley
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Jana Hensley Jarvis A. Hensley
/s/ Karen Jackson /s/ Chris A. Jackson
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Karen Jackson Chris A. Jackson
/s/ Naydene Johnson /s/ Jarl P. Johnson
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Naydene Johnson Jarl P. Johnson
/s/ Douglas H. Miller
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Douglas H. Miller
/s/ Donnetta Nelson /s/ Gary M. Nelson
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Donnetta Nelson Gary M. Nelson
/s/ Betty Scoggins /s/ Gary R. Scoggins
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Betty Scoggins Gary R. Scoggins
/s/ Karen Seaman /s/ Claude A. Seaman
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Karen Seaman Claude A. Seaman
/s/ Patricia Spencer /s/ J.W. Spencer, III
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Patricia Spencer J. W. Spencer, III
/s/ Kate Studdard /s/ Scott E. Studdard
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Kate Studdard Scott E. Studdard