EXHIBIT 10.153
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Amendment"),
dated as of February 17, 2006, by and among Delta Petroleum Corporation, a
Delaware corporation ("Parent") and the surviving entity in a reincorporation
merger with Delta Petroleum Corporation, a Colorado corporation
("Delta-Colorado"), DPCA LLC, a Delaware limited liability company and a wholly
owned subsidiary of Parent ("Subsidiary"), and Castle Energy Corporation, a
Delaware corporation (the "Company"), amends that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated as of November 8, 2005, among
Delta-Colorado, Parent, Subsidiary, and the Company. Terms not otherwise defined
herein shall have the meanings ascribed to them in the Agreement.
RECITALS
WHEREAS, the Parties desire to amend the Merger Agreement to reflect
the changes specifically set forth below.
AGREEMENT
NOW, THEREFORE, in accordance with Section 7.4 of the Merger Agreement,
the Parties hereby agree as follows:
1. Section 1.7(e) of the Merger Agreement is hereby amended
and restated in its entirety as follows:
"(e) Fractional Shares.
(i) No fractional shares of Parent Common Stock shall be
issued in the Merger, but in lieu thereof each holder of shares of
Company Common Stock otherwise entitled to a fractional share of Parent
Common Stock will be entitled to receive, from the Exchange Agent in
accordance with the provisions of this Section 1.7(e), a cash payment
of the fair value of such fractional shares of Parent Common Stock. The
fair value of the fractional shares to be paid shall equal such
holder's proportionate interest, if any, in the proceeds from the sale
by Parent or its designees in one or more transactions of shares of
Parent Common Stock equal to the excess of (x) the aggregate number of
shares of Parent Common Stock to be delivered to the Exchange Agent by
Parent pursuant to Section 1.7(a) over (y) the aggregate number of
whole shares of Parent Common Stock to be distributed to the holders of
Stock Certificates pursuant to Section 1.7(b) (such excess being herein
called the "Excess Shares"). As soon as practicable after the Effective
Time, Parent or its designees, as agent for the holders of the Stock
Certificates representing shares of Company Common Stock, shall sell
the Excess Shares at then prevailing prices on the NASDAQ National
Market System ("NASDAQ") in round lots to the extent
practicable.
(ii) Parent shall deposit the proceeds from the sale of
the Excess Shares with the Exchange Agent. The Exchange Agent shall
hold such proceeds in trust for the holders of shares of Company Common
Stock (the "Common Shares Trust"). The Exchange Agent shall determine
the portion of the Common Shares Trust to which each holder of shares
of Company Common Stock shall be entitled, if any, by multiplying the
amount of the aggregate proceeds comprising the Common Shares Trust by
a fraction, the numerator of which is the amount of the fractional
share interest to which such holder of shares of Company Common Stock
would otherwise be entitled and the denominator of which is the
aggregate amount of fractional share interests to which all holders of
shares of Company Common Stock would otherwise be entitled.
(iii) As soon as practicable after the determination of
the amount of cash, if any, to be paid to holders of shares of Company
Common Stock in lieu of any fractional shares of Parent Common Stock,
the Exchange Agent shall make available such amounts to such holders of
shares of Company Common Stock without interest, subject to and in
accordance with this Section 1.7."
2. Section 7.1(b) of the Merger Agreement shall be amended by
deleting "April 1, 2006" and replacing it with "May 1, 2006".
3. Except as modified by this Amendment, the Merger Agreement
shall remain in full force and effect.
4. 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.
5. 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.
[Signature page follow]
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IN WITNESS WHEREOF, the Company, Parent and Subsidiary have
caused this Amendment to be executed as of the date first written above.
DELTA PETROLEUM CORPORATION,
A DELAWARE CORPORATION
By: /s/ Roger A. Parker
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Name: Roger A. Parker
Title: CEO
DPCA LLC
By: Delta Petroleum Corporation, its Sole Member
By: /s/ Roger A. Parker
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Name: Roger A. Parker
Title: CEO
CASTLE ENERGY CORPORATION
By: /s/ Richard E. Staedtler
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Name: Richard E. Staedtler
Title: Chief Executive Officer
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