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EXHIBIT 2.5
Execution Copy
SECOND AMENDMENT TO
NOTE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDMENT TO NOTE EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT, dated as of __________ __, 1996 is made and entered into by and
among FORCENERGY INC, a Delaware corporation, formerly named Forcenergy Gas
Exploration, Inc. (the "Company"), and certain of the Holders referred to in
the Original Agreement (defined below).
WHEREAS, the parties hereto have entered into a Note Exchange
and Registration Rights Agreement, dated as of September 15, 1993, as amended
by an amendment dated June 1, 1995 (the "Original Agreement"); and
WHEREAS, the Company is contemplating conducting a Qualified
IPO (as defined in the Original Agreement);
WHEREAS, the parties hereto desire to modify the Original
Agreement in order to facilitate the Qualified IPO.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I.
AMENDMENTS
A. The Original Agreement is amended by adding the following at
Section 4.2(d) thereof:
(d) If the Company files a Registration Statement for an
underwritten offering pursuant to which authorized but
unissued common shares offered by the Company (the "Company's
Shares") amount to at least two percent (2%) of the Company's
primary common shares outstanding and Registrable Shares are
included in the underwriting arrangements under the same price
and terms, and such offering would not constitute a Qualified
IPO solely because of its pricing terms (e.g., the aggregate
Current Market Price of 20% of the fully diluted then
outstanding shares of Common Stock is less than $40 million),
then such offering shall nonetheless constitute a Qualified
IPO if either:
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1. The gross selling price of the Registrable Shares and
Company's Shares pursuant to the underwriting agreement for
such offering (i.e., the "Price to Public") is adequate to
imply a value of $1499.42 for the number of shares of Common
Stock issuable upon exchange of each $1,000 aggregate
principal amount of Notes then outstanding (the "Required
Price"); or
2. Prior to filing the registration statement with
respect to an underwritten offering, the Company notifies the
holders of Notes and Registrable Shares in writing that the
Company elects (the "Election") to pay with respect to such
underwritten offering (the "Offering") (a) in respect of each
Registrable Share included in the Offering, an amount equal to
the difference (the "Spread") between the Required Price and
the gross selling price for each Registrable Share sold
pursuant to the underwriting agreement for the Offering, and
(b) in respect of each other Registrable Share that is sold
before September 15, 2000, the Make-Whole Amount (as defined
below). "Make-Whole Amount" shall mean an amount per
Registrable Share equal to the lesser of (i) the Spread, and
(ii) the difference, if positive, between the Required Price
and the gross selling price of such Registrable Share in an
open market arm's length sale made by a Holder ("Arm's Length
Sale").
With respect to the Offering, of which the Company
gave notice to Holders on September 17, 1996, the Company
hereby makes the Election and no further notice of same need
be given to Holders. With respect to any other Offerings, the
Election shall be delivered on or prior to the written notice
given to the Holders pursuant to Section 6.2 of the Original
Agreement. With respect to any Offering, regardless of
whether or not the Company makes the Election, the Company
shall retain the right to terminate and decline to consummate
the Offering in its sole discretion, provided that no such
terminated Offering shall constitute a Qualified IPO.
If the Company makes the Election, it may not reduce
the number of Registrable Shares in the Offering.
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If the Company makes the Election, (i) it shall pay
the Spread in immediately available funds at the closing of
the Offering in respect of each Registrable Share sold in the
Offering, and (ii) it shall pay the Make-Whole Amount in
immediately available funds for each Registrable Share that is
thereafter sold upon demand of the Holder made before
September 30, 2000, accompanied by a copy of the confirmation
of the Arm's Length Sale.
The Holders will be responsible to pay the brokerage
discounts and commissions incurred to sell Registrable Shares,
except that for Registrable Shares sold pursuant to an
Offering the Company will pay, in addition to the Spread, that
portion of such discounts and commissions as required to
assure that, in all events, such Holders receive net sale
proceeds (i.e., Price to Public plus the Spread and minus that
portion of the discounts and commissions borne by the Holders)
of at least $21.16 for each Registrable Share so sold.
1.2 The provisions of Section 1.1 hereof shall not become effective
until this instrument has been signed by Holders of not less than 75% of the
aggregate number of Registrable Shares outstanding and/or issuable upon
exchange of the Notes pursuant to the terms of the Original Agreement.
ARTICLE II.
CERTAIN REPRESENTATIONS
Each party hereto hereby represents and warrants to each other party
that (i) it has full power and authority to execute and deliver this instrument
and to consummate the transactions contemplated hereby and (ii) this instrument
has been duly executed and delivered by such party and, assuming this
instrument constitutes a valid and binding obligation of each other party, this
instrument constitutes a valid and binding agreement of such party, enforceable
against such party in accordance with its terms.
ARTICLE III.
GENERAL PROVISIONS
A. Headings. The descriptive headings contained herein are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of the Agreement.
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B. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings given thereto in the Original Agreement.
C. No Third Party Beneficiaries. This instrument shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other person any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of the Agreement.
D. Counterparts. This instrument may be executed in one or more
counterparts, and by the different parties thereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
E. Full Force and Effect. Except as otherwise expressly modified
hereby, the Original Agreement shall remain in full force and effect, and, to
the extent that there areA any inconsistencies between this instrument and the
Original Agreement, the terms and provisions hereof shall govern. All
references to the term "Agreement" herein and in the Original Agreement shall
be deemed to refer to the Original Agreement as modified hereby.
F. Expenses. The Company shall pay the Holders' reasonable legal
fees incurred in the negotiation and execution of this Amendment.
G. Governing Law. THIS INSTRUMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
In Witness Whereof, this Second Amendment has been executed and
delivered as of the date first above written.
FORCENERGY INC
By
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Title
CHASE EQUITY ASSOCIATES, a
California Limited Partnership
(successor to Chemical Equity
Associates)
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By: Chase Capital Partners, its
General Partner
By
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Title
FIRST SPRING CORPORATION
By:
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Title
FINANCIAL STRATEGIC PORTFOLIOS, INC.-
Energy Portfolio
By:
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Title
FINANCIAL STRATEGIC PORTFOLIOS, INC.-
Utilities Portfolio
By:
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Title
BURDEN DIRECT INVESTMENT FUND I, a
Delaware General Partnership
By: ▇▇▇▇▇▇▇ A.M. Burden & Co., L.P., a
Delaware Limited Partnership, its
General Partner
By: Burden Brothers, Inc., its General
Partner
By:
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Title
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A.C. ISRAEL ENTERPRISES, INC.,
By:
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Title
CONSECO CAPITAL
By:
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Title
▇▇▇▇▇ PARTNERS, I, a Limited
Partnership
By: Ninth Floor Corp., its General
Partner
By:
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Title
▇▇▇▇▇▇▇ VENTURE CAPITAL FUND III, L.P.,
a Delaware Limited Partnership,
By: ▇▇▇▇▇▇▇ Partners, Inc., a Delaware
Corporation, its General Partner
By:
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Title
▇▇▇▇▇▇▇ TRUST COMPANY AS TRUSTEE OF THE
▇▇▇▇▇▇▇ MAP VENTURE CAPITAL FUND III
TRUST, a Group Collective Investment
Trust
By:
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Title
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VIRGINIA RETIREMENT SYSTEM
By: ▇▇▇▇▇▇▇ Partners, Inc., under Power
of Attorney
By:
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Title
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