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EXHIBIT (d)(2)
AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of
February 2, 2001 (this "Amendment") by and among MARATHON OIL COMPANY, an Ohio
corporation ("Parent"), MARATHON OIL ACQUISITION 1, LTD., a Delaware corporation
and a direct wholly owned subsidiary of Parent ("Sub"), and PENNACO ENERGY,
INC., a Delaware corporation (the "Company").
PRELIMINARY STATEMENT
The parties hereto also are the parties to an Agreement and
Plan of Merger dated as of December 22, 2000 (the "Merger Agreement"), and they
desire to amend the Merger Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements this Amendment contains, Parent, Sub and the Company hereby
agree as follows:
Section 1. Amendment. (a) Section 1.07 of the Merger Agreement
hereby is amended to read in its entirety as follows:
Section 1.07. Certificate of Incorporation and Bylaws.
(a) The Certificate of Incorporation of the Company, as in
effect immediately prior to the Effective Time, shall be amended at the
Effective Time to read in its entirety as set forth in Exhibit A
hereto; and, as so amended, that Certificate of Incorporation shall be
the Certificate of Incorporation of the Surviving Corporation until
thereafter changed or amended in accordance with the provisions thereof
and applicable Law.
(b) The Bylaws of the Company, as in effect immediately prior
to the Effective Time, shall amended in their entirety at the Effective
Time to read as the Bylaws of Sub, as in effect immediately prior to
the Effective Time, provided that those amended Bylaws shall provide
that the name of the Company is "Pennaco Energy, Inc."; and, as so
amended, those Bylaws shall be the Bylaws of the Surviving Corporation
until thereafter changed or amended in accordance with the provisions
thereof and the provisions of the Certificate of Incorporation of the
Surviving Corporation and applicable Law.
Section 2. Representatives and Warranties of the Company. The
Company represents and warrants to Parent and Sub as follows:
(a) The Company has all requisite corporate power and
authority to execute and deliver this Amendment. The execution and
delivery by the Company of this Amendment have been duly authorized by
all necessary corporate action on the part of the Company, including
approval of the Board of Directors of the Company in accordance with
the provisions of Section 8.05 of the Merger Agreement.
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(b) The Company has duly executed and delivered this
Amendment, and this Amendment constitutes the legal, valid and binding
obligation, enforceable against the Company in accordance with the
terms hereof, except as that enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally
and the application of general principles of equity (regardless of
whether that enforceability is considered in a proceeding at law or in
equity).
Section 3. Representations and Warranties of Parent and Sub.
Parent and Sub, jointly and severally represent and warrant to the Company as
follows:
(a) Each of Parent and Sub has all requisite corporate power
and authority to execute and deliver this Amendment. The execution and
delivery by each of Parent and Sub of this Amendment have been duly
authorized by all necessary corporate action on the part of Parent and
Sub.
(b) Each of Parent and Sub has duly executed and delivered
this Amendment, and this Amendment constitutes its legal, valid and
binding obligation, enforceable against it in accordance with the terms
hereof, except as that enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor's rights generally and the
application of general principles of equity (regardless of whether that
enforceability is considered in a proceeding at law or in equity).
Section 4. Effect on Merger Agreement. When this Amendment
becomes effective pursuant to the provisions of Section 5 hereof, all references
to "this Agreement" in the Merger Agreement shall be deemed to refer to the
Merger Agreement as amended by this Amendment, unless the context otherwise
requires. Except as amended hereby, all provisions of the Merger Agreement are
and will remain in full force and effect.
Section 5. Execution in Counterparts; Effectiveness. This
Amendment may be executed in any number of counterparts, each of which will be
deemed for all purposes to be an original, but all of which together will
constitute one and the same Amendment. This Amendment will become effective
immediately on execution and delivery by the parties hereto.
Section 6. Governing Law. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
MARATHON OIL COMPANY
By: /s/ Clarence P. Cazalot, Jr.
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Clarence P. Cazalot, Jr.
President
MARATHON OIL ACQUISITION 1, LTD.
By: /s/ Richard J. Murphy
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Richard J. Murphy
President
PENNACO ENERGY, INC.
By: /s/ Paul M. Rady
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Paul M. Rady
President
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EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
PENNACO ENERGY, INC.
FIRST: The name of the Corporation is PENNACO ENERGY, INC. (the
"Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, County of
New Castle, Delaware 19801. The name of the registered agent
of the Corporation at such address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage in, carry on and
conduct any lawful business, act or activity for which
corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
FOURTH: The total number of shares of stock which the Corporation will
have authority to issue is 1,000 shares of common stock, which
shares will be without par value ("Common Stock").
FIFTH: Each holder of Common Stock shall have one vote in respect of
each share of Common Stock held by such holder on any matter
submitted to the stockholders of the Corporation. Cumulative
voting of shares of Common Stock is prohibited. Shares of
Common Stock may be issued for such consideration and for such
corporate purposes as the Board of Directors of the
Corporation may from time to time determine. In the event of
voluntary or involuntary liquidation, distribution or sale of
assets, dissolution or winding-up of the Corporation, the
holders of the Common Stock shall be entitled to receive all
the assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders,
ratably in proportion to the number of shares of Common Stock
held by each.
SIXTH: The number of directors that shall constitute the whole Board
of Directors of the Corporation shall be as from time to time
fixed by, or in the manner provided in, the by-laws of the
Corporation. The election of directors need not be by written
ballot, unless the by-laws so provide. Each director shall
hold office for the full term for which such director is
elected and until such director's successor shall have been
duly elected and qualified or until his earlier death,
resignation or removal.
SEVENTH: The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors. In
furtherance and not in limitation of the powers conferred by
the DGCL, the Board of Directors of the Corporation is
expressly authorized to adopt, amend or repeal the by-laws of
the Corporation; provided, however, that the grant of such
authority shall not divest the stockholders of the Corporation
of the power, nor limit their power to adopt, amend or repeal
the by-laws of the Corporation.
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EIGHTH: No director of the Corporation shall be personally liable to
the Corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a director involving
any act or omission of any such director; provided, however,
that the foregoing provision shall not eliminate or limit the
liability of a director (a) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (b)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c)
under Section 174 of the DGCL, as the same exists or hereafter
may be amended, supplemented, or replaced or (d) for any
transaction from which such director derived an improper
personal benefit. Any repeal or modification of this Article
EIGHTH shall be prospective only and shall not adversely
affect any limitation on the personal liability of a director
of the Corporation existing at the time of such repeal or
modification.
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