AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER, dated as of January 29, 2021 (this Amendment), is entered into by and among Bonanza Creek Energy, Inc., a Delaware corporation (Parent), Boron Merger Sub, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (Merger Sub), and HighPoint Resources Corporation, a Delaware corporation (the Company). Parent, Merger Sub and the Company are each sometimes referred to herein as a Party and collectively as the Parties.
WHEREAS, on November 9, 2020, the Parties entered into the Agreement and Plan of Merger (the Merger Agreement); and
WHEREAS, in accordance with Section 9.12 of the Merger Agreement, the Parties desire to amend the Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. Each capitalized term used but not otherwise defined herein shall have the meaning ascribed to such term in the Merger Agreement, as amended hereby.
2. Amendments to the Merger Agreement.
(a) the eighth recital to the preamble is hereby amended and restated as follows:
WHEREAS, as an inducement to Parent to enter into this Agreement, concurrently with the execution and delivery of this Agreement, (i) a certain stockholder at the Company (the Company Designated Stockholder) and (ii) holders of at least 73% in principal amount of each of the 7.0% Senior Notes issued by HighPoint Operating Corporation, a wholly owned Subsidiary of the Company (Opco), due October 15, 2022 and the 8.75% Senior Notes issued by Opco due June 15, 2025 (collectively, the Company Senior Notes, and such holders, the Supporting Noteholders) have entered into that certain transaction support agreement with the Company and its Subsidiaries (the Transaction Support Agreement);
(b) Section 1.2 is hereby amended by replacing the reference to 6.23(a) in the line commencing Minimum Participation Condition with a reference to 6.23(b);
(c) Section 6.23(b) is hereby amended and restated as follows:
(b) The obligations of Parent under the Exchange Offer shall be subject to the satisfaction of the conditions to the consummation of the Merger set forth in Article VII of this Agreement and to the further condition that, in the case of the Exchange Offer, not less than 97.5% of the aggregate outstanding principal amount of each series of Company Senior Notes shall have been validly tendered in accordance with the terms of the Exchange Offer on or prior to the Exchange Offer Expiration Date and not validly withdrawn (such 97.5% of the outstanding principal amount of each series of Company Senior Notes validly tendered and not withdrawn being herein referred to as the Minimum Participation Condition). Except as otherwise provided