Exhibit 10.1


 


AMENDMENT NO. 4


 


TO


 


AGREEMENT AND PLAN OF MERGER


 


THIS AMENDMENT NO. 4 TO
AGREEMENT AND PLAN OF MERGER (this “Amendment”)
is made and entered into this 19th day of May, 2010 by and among Resaca
Exploitation, Inc., a Texas corporation (“Parent”),
Resaca Acquisition Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger Sub”),
and Cano Petroleum, Inc., a Delaware corporation (“Target”).


 


W I T N E S S E T H
:


 


WHEREAS, Parent, Merger Sub
and Target are parties to that certain Agreement and Plan of Merger dated September 29,
2009, that certain Amendment No. 1 to Agreement and Plan of Merger dated February 24,
2010, that certain Amendment No. 2 to Agreement and Plan of Merger dated April 1,
2010 and that certain Amendment No. 3 to Agreement and Plan of Merger
dated April 28, 2010 (as amended, the “Merger
Agreement”);


 


WHEREAS, Parent and Target
desire to further amend the Merger Agreement to modify the method pursuant to
which Parent and Target solicit proxies relating to obtaining the necessary
approvals of the agenda items to be voted upon at the Target Meeting and the
Parent Meeting; and


 


WHEREAS, pursuant to Section 11.12
of the Merger Agreement, the Merger Agreement may be amended if made in writing
by Parent and Target.


 


NOW, THEREFORE, in
consideration of the premises, the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


Section 1.               Certain Definitions.  Terms used in this
Amendment and not otherwise defined herein shall have the meanings set forth in
the Merger Agreement.  All references to
the “Agreement” in the Merger Agreement shall be deemed to refer to the Merger
Agreement, as amended by this Amendment.


 


Section 2.               Amendment and Restatement of Section 4.20.  Section 4.20
of the Merger Agreement is hereby amended and restated in its entirety to read
as follows:


 


“                         4.20              Proxy/Prospectus; Registration
Statement.  None of the information to be supplied by Target for
inclusion in (a) the proxy statement relating to the Target Meeting (as
defined below) (also constituting the prospectus in respect of Parent Common
Shares into which Target Common Shares will be converted) (the “Proxy/Prospectus”) to be
filed by Target and Parent with the SEC, and any amendments or supplements
thereto, (b) the proxy statement or comparable document relating to the
Parent Meeting (as defined below) (the “Parent
Proxy”) to be mailed by Parent to its shareholders and its Nomad
(as defined below), and any amendments or supplements


 

















 


thereto,
or (c) the Registration Statement on Form S-4 (the “Registration Statement”) to
be filed by Parent with the SEC in connection with the Merger, and any
amendments or supplements thereto, will, at the respective times such documents
are filed, and, in the case of the Proxy/Prospectus and the Parent Proxy, at
the time such documents or any amendment or supplement thereto is first mailed
to the Target and Parent stockholders, at the time of the Target Meeting and
the Parent Meeting and at the Effective Time, and, in the case of the
Registration Statement, when it becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be made therein or necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading.”


 


Section 3.               Amendment and Restatement of Section 5.20.  Section 5.20
of the Merger Agreement is hereby amended and restated in its entirety to read
as follows:


 


“              5.20         Proxy/Prospectus; Registration Statement.  None of the information to be supplied by
Parent and, with respect to clause (d) only, its directors for inclusion
in (a) the Parent Proxy, (b) the Proxy/Prospectus to be filed by
Target and Parent with the SEC, and any amendments or supplements thereto, (c) the
Registration Statement to be filed by Parent with the SEC in connection with
the Merger, or (d) the Readmission Document to be compiled in accordance
with the AIM Rules, and any amendments or supplements thereto, will, at the
respective times such documents are filed, and, in the case of the Parent Proxy
and the Proxy/Prospectus, at the time such documents or any amendments or
supplements thereto are first mailed to the Target and Parent stockholders, at
the time of the Target Meeting and the Parent Meeting and at the Effective
Time, and, in the case of the Registration Statement, when it becomes effective
under the Securities Act, contain any untrue statement of a material fact or
omit to state any material fact required to be made therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading.”


 


Section 4.               Amendment and Restatement of Section 7.6(b).  Section 7.6(b) of
the Merger Agreement is hereby amended and restated in its entirety to read as
follows:


 


“                              (b)           “Expenses”
as used in this Agreement shall include all reasonable out-of-pocket expenses
incurred by a party or on its behalf in connection with or related to the
preparation, printing, filing and mailing of the Registration Statement, the
Proxy/Prospectus, the Parent Proxy, the solicitation of stockholder approvals
and requisite HSR filings (subject to reasonable documentation).  Expenses shall exclude all fees and expenses
of outside counsel, accountants, financing sources, investment bankers, experts
and consultants to any party hereto and its affiliates incurred by such party
or on its behalf in connection with or related to the due diligence,
authorization, preparation, negotiation, execution or performance of this
Agreement.”


 


Section 5.               Amendment and Restatement of Section 7.14(b).  Section 7.14(b) of
the Merger Agreement is hereby amended and restated in its entirety to read as
follows:


 


“                              (b)           Parent shall, as promptly as reasonably
practicable after the date hereof (i) take all steps reasonably necessary
to call, give notice of, convene and hold a


 


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special
or annual meeting of its stockholders (the “Parent
Meeting”) for the purpose of securing the Parent Stockholders’
Approval, (ii) distribute to its stockholders the Parent Proxy in
accordance with applicable federal and state law and its Certificate of
Incorporation and Bylaws, which Parent Proxy shall contain the recommendation
of the Parent Board of Directors that its stockholders approve this Agreement, (iii) subject
to Section 7.3 and Article X, recommend approval of the
Merger and this Agreement through its board of directors, (iv) subject to Section 7.3
and Article X, use commercially reasonable efforts to solicit from
its stockholders proxies to secure the Parent Stockholders’ Approval, and (v) cooperate
and consult with Target with respect to each of the foregoing matters.”


 


Section 6.               Amendment and Restatement of Section 7.15(a).  Section 7.15(a) of
the Merger Agreement is hereby amended and restated in its entirety to read as
follows:


 


“                              (a)           Parent and Target shall promptly (i) prepare
and file with the SEC a preliminary version of the Proxy/Prospectus and will
use commercially reasonable efforts to respond to the comments of the SEC in
connection therewith and to furnish all information required to prepare the
definitive Proxy/Prospectus, (ii) prepare and mail the Parent Proxy to the
Parent’s stockholders and will use commercially reasonable efforts to furnish
all information required to prepare such Parent Proxy and (iii) prepare
and publish an admission document in relation to Parent and Target (the “Readmission Document”), which shall
be compiled in accordance with the AIM Rules and Parent and Target shall
furnish all relevant information required to publish the Readmission Document,
procure the acceptance of responsibility of any director or proposed director
of Parent in connection with the Readmission Document, the engagement of any
competent person in accordance with the AIM Rules and the engagement of
any other adviser that may be required so that Parent may be approved and
re-admitted to the AIM.  At any time from
(and including) the initial filing with the SEC of the Proxy/Prospectus, Parent
shall file with the SEC the Registration Statement containing the
Proxy/Prospectus so long as Parent shall have provided to Target a copy of the
Registration Statement containing the Proxy/Prospectus at least ten (10) days
prior to any filing thereof and any supplement or amendment at least two (2) days
prior to any filing thereof.  Subject to
the foregoing sentence, Parent and Target shall jointly determine the date that
the Registration Statement is filed with the SEC and the date that Parent shall
be re-admitted to listing on AIM.  Parent
and Target shall use commercially reasonable efforts (i) to have the
Registration Statement declared effective under the Securities Act as promptly
as practicable after such filing and (ii) use commercially reasonable
efforts to achieve the intended date for re-admission to listing on AIM
including instructing Parent’s nominated adviser to file such necessary notices
with AIM as may be required to effect Parent’s listing on AIM.  Parent shall also take any action (other than
qualifying to do business in any jurisdiction in which it is not now so
qualified or filing a general consent to service of process in any
jurisdiction) required to be taken under any applicable state securities laws
or AIM Rules in connection with the issuance of Parent Common Shares in
the Merger and Target shall furnish all information concerning Target and the
holders of shares of Target capital stock as may be reasonably requested in
connection with any such action. 
Promptly after the completion of the Readmission Document but before the
effectiveness of the Registration Statement, Parent shall cause the Parent
Proxy and the


 


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Readmission
Document to be mailed to its stockholders, and if necessary, after the Parent
Proxy and Readmission Document have been mailed, promptly circulate amended,
supplemented or supplemental proxy materials and, if required in connection
therewith, re-solicit proxies or written consents, as applicable.  Promptly after the effectiveness of the
Registration Statement and the completion of the Readmission Document, Target
shall cause the Proxy/Prospectus to be mailed to its stockholders, and if
necessary, after the definitive Proxy/Prospectus has been mailed, promptly
circulate amended, supplemented or supplemental proxy materials and, if
required in connection therewith, re-solicit proxies or written consents, as
applicable.  If at any time prior to the
Effective Time, the officers and directors of Parent or Target discover any
statement which, in light of the circumstances to which it is made, is false or
misleading with respect to a material fact or omits to state a material fact
necessary to make a statement made in the Parent Proxy, Proxy/Prospectus or the
Readmission Document not misleading, then such party shall immediately notify
the other party of such misstatements or omissions.  Parent shall advise Target and Target shall
advise Parent, as applicable, promptly after it receives notice thereof, of the
time when the Registration Statement becomes effective or any supplement or
amendment has been filed, the issuance of any stop order, the suspension of the
qualification of the Parent Common Shares for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Proxy/Prospectus
or the Registration Statement or comments thereon and responses thereto or
requests by the SEC for additional information.”


 


Section 7.               Ratification of the Merger Agreement.  The Merger
Agreement, as amended by this Amendment, is hereby ratified and confirmed in
all respects and shall remain in full force and effect.


 


Section 8.               Counterparts.  This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute the same instrument.


 


*  *  * 
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[Signature Page Follows]


 


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IN WITNESS WHEREOF, the
parties hereto have duly executed this Amendment as of the day and year first
above written.


 


	
   

  	
   

  	
  RESACA EXPLOITATION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Chris Work

  
	
   

  	
   

  	
  Name:

  	
  Chris Work

  
	
   

  	
   

  	
  Title:

  	
  VP and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  RESACA ACQUISITION SUB, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Chris Work

  
	
   

  	
   

  	
  Name:

  	
  Chris Work

  
	
   

  	
   

  	
  Title:

  	
  VP and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CANO PETROLEUM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ben Daitch

  
	
   

  	
   

  	
  Name:

  	
  Ben Daitch

  
	
   

  	
   

  	
  Title:

  	
  SVP and CFO

  



 


 


Amendment No. 4 to Agreement and Plan of Merger


Signature Page