AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 2, dated as of March 27, 2000 (this "Amendment"), to the
Agreement and Plan of Merger, dated as of March 31, 1999, as amended as of July
12, 1999 (the "Agreement"), among BP AMOCO p.l.c., an English public limited
company ("BP Amoco"), ATLANTIC RICHFIELD COMPANY, a Delaware corporation
("ARCO") and PRAIRIE HOLDINGS, INC., a Delaware corporation and direct wholly
owned subsidiary of BP Amoco ("Merger Sub").
W I T N E S S E T H:
WHEREAS, BP Amoco, ARCO and Merger Sub desire to amend the Agreement to
effect certain administrative changes; and
WHEREAS, Section 6.2 of the Agreement provides that, subject to
applicable law, the Agreement may be modified or amended by agreement of the
parties, by action taken or authorized by their respective Boards of Directors
prior to the Effective Time (as defined in the Agreement) and by an instrument
in writing executed and delivered by duly authorized officers of each of the
parties hereto; and
WHEREAS, the respective Boards of Directors of BP Amoco, ARCO and
Merger Sub have authorized their duly authorized officers to execute and deliver
this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
Amendments to the Agreement
1.1 Section 1.4.1 of the Agreement shall be amended to read in its
entirety as follows:
1.4.1. Prior to the Effective Time, BP Amoco shall appoint an agent
reasonably acceptable to ARCO as exchange agent (the "Exchange Agent") for
the purpose
of accepting Certificates to be surrendered by holders of ARCO Common
Shares in exchange for BP Amoco Depositary Shares or, if and to the extent
elected by a holder of ARCO Common Shares in the manner provided in this
Section 1.4.1 for BP Amoco Ordinary Shares in registered form, and letters
of transmittal as described in this Section 1.4.1. Promptly after the
Effective Time, the Surviving Corporation will send, or will cause the
Exchange Agent to send, to each holder of record as of the Effective Time
of ARCO Common Shares (other than holders of Excluded ARCO Shares) (i) a
letter of transmittal, in such form or forms as ARCO and BP Amoco may
reasonably agree, for use in effecting delivery of Certificates to the
Exchange Agent and including a form of election by which each holder of
ARCO Common Shares may elect, subject to the provisions of this Section
1.4.1, to receive (the "Ordinary Share Election") all or part of the Merger
Consideration to which such holder is entitled in the form of BP Amoco
Ordinary Shares in registered form, rather than in the form of BP Amoco
Depositary Shares (such BP Amoco Ordinary Shares or BP Amoco Depositary
Shares to be received by a holder being referred to in this Agreement as
"BP Amoco Shares"), and (ii) instructions for surrendering ARCO Common
Shares in exchange for the BP Amoco Shares, and any cash in lieu of
fractional interests in BP Amoco Depositary Shares and any cash dividends
or other distributions, that such holder has the right to receive pursuant
to this Article I. ARCO, acting as agent for each holder of record as of
the Effective Time of ARCO Common Shares (other than Excluded ARCO Shares),
shall prior to the Effective Time appoint XX Xxxxxx Securities Limited or
such other agent as may be reasonably acceptable to BP Amoco (the
"Custodian"), as custodian and agent for and on behalf of the holders of
ARCO Common Shares in connection with the issuance of BP Amoco Depositary
Shares or BP Amoco Ordinary Shares in accordance with this Article I,
subject to the terms and conditions of this Agreement and an exchange agent
and custodian agreement among BP Amoco, ARCO, the Exchange Agent and the
Custodian (the "Exchange Agent and Custodian Agreement"). BP Amoco shall
issue the BP Amoco Ordinary Shares referred to in
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Section 1.3.4 in registered form to Exchange Nominees Limited or such other
person as may be reasonably acceptable to BP Amoco and ARCO (the "Nominee")
acting as nominee for and at the sole direction of the Custodian. During
the period after the Effective Time and prior to the close of business on
the 98th day following the Closing Date, the Custodian shall be authorized,
subject to termination by the Surviving Corporation, to enter into
unsolicited transactions with one or more securities dealers for the
exchange of BP Amoco Depositary Shares for such BP Amoco Ordinary Shares
held by the Nominee at the ratio of BP Amoco Ordinary Shares to one BP
Amoco Depositary Share then applicable to withdrawals of BP Amoco Ordinary
Shares under the Deposit Agreement, provided that the ability to effect
such exchange transactions shall not be a condition precedent to the
consummation of the Merger. Such transactions shall be subject to such
terms and conditions as may be provided in the Exchange Agent and Custodian
Agreement and as may otherwise be approved by the Surviving Corporation. In
connection with any such exchange transactions, the Custodian shall give
such notices of withdrawal to the Depositary, and surrender such number of
BP Amoco Depositary Shares as shall have been acquired in such exchange
transactions, as may be necessary to ensure that the Custodian has
available to it BP Amoco Ordinary Shares that may be required from time to
time to satisfy each Ordinary Share Election properly made. The Surviving
Corporation shall be responsible for all costs, fees, expenses and losses
of the Custodian, the Nominee and the holders of ARCO Common Shares arising
out of any such exchange transactions and any such related withdrawals of
BP Amoco Ordinary Shares against the surrender of BP Amoco Depositary
Shares.
As and when required for the issuance of BP Amoco Depositary Shares to
holders of ARCO Common Shares in respect of ARCO Common Shares properly
delivered to the Exchange Agent that are not subject to an Ordinary Share
Election, the Custodian shall (i) to the extent of BP Amoco Depositary
Shares, if any, then held by the Custodian as a result of the exchange
transactions
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hereinabove described, deliver such BP Amoco Depositary Shares to the
Exchange Agent for delivery to holders of ARCO Common Shares and (ii)
otherwise, deposit or cause to be deposited BP Amoco Ordinary Shares with
the Depositary (or as it may direct) and requisition from the Depositary,
from time to time, such number of BP Amoco Depositary Shares, in such
denominations as the Custodian shall specify, as are issuable in respect of
such ARCO Common Shares, in each case in accordance with this Article 1. As
and when required in respect of any Ordinary Share Election, the Custodian
shall cause to be delivered BP Amoco Ordinary Shares to holders of ARCO
Common Shares subject to an Ordinary Share Election in accordance with this
Article I.
Each holder of ARCO Common Shares entitled to receive the Merger
Consideration in accordance with Section 1.3.2 may exercise the Ordinary
Share Election only by returning to the Exchange Agent prior to the close
of business on the 42nd day following the Closing Date a properly completed
letter of transmittal and form of election. Any such holder of ARCO Common
Shares may make an Ordinary Share Election with respect to any or all of
such holder's ARCO Common Shares, provided that (i) the number of BP Amoco
Ordinary Shares to which any such holder will be entitled in respect of
such Ordinary Share Election shall not be less than six and shall be an
integral multiple of six; (ii) any number of BP Amoco Ordinary Shares less
than six or in excess of an integral multiple thereof ("Excess Ordinary
Shares") shall constitute a fractional interest in a BP Amoco Depositary
Share; and (iii) such holder will therefore be entitled only to cash in
lieu of Excess Ordinary Shares in accordance with Section 1.6. Only BP
Amoco Depositary Shares shall be issued as Merger Consideration with
respect to ARCO Common Shares for which the holder of such ARCO Common
Shares shall not have exercised an Ordinary Share Election prior to the
close of business on the 42nd day following the Closing Date or for which
the holder shall have delivered to the Exchange Agent prior to such time a
letter of transmittal declining to make an Ordinary Share Election.
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1.2 Section 1.4.5 of the Agreement shall be amended to read in its
entirety as follows:
1.4.5. After the 98th day after the Closing (i) any BP Amoco
Depositary Shares and any cash amounts then held by the Custodian shall be
delivered to the Exchange Agent and (ii) any BP Amoco Ordinary Shares then
held by the Nominee on behalf of the Custodian shall be deposited by the
Nominee with the Depositary or on its behalf for the issuance of BP Amoco
Depositary Shares to the Exchange Agent, in each case as and when required,
for the issuance or delivery of BP Amoco Depositary Shares and any cash
amounts which may thereafter be issuable or deliverable to holders of ARCO
Common Shares. Any BP Amoco Depositary Shares issuable or deliverable in
respect of ARCO Common Shares pursuant to this Article I and any cash in
lieu of fractional interests in BP Amoco Depositary Shares payable pursuant
to Section 1.6, plus any cash dividend or other distribution that such
holder has the right to receive pursuant to Section 1.4.6, that remains
unclaimed by any holder of ARCO Common Shares six months after the
Effective Time shall be held by or on behalf of the Exchange Agent or the
Depositary, as the case may be, subject to the instruction of BP Amoco, in
an account or accounts designated for such purpose. BP Amoco shall not be
liable to any holder of ARCO Common Shares for any securities delivered or
any amount paid by the Depositary to a public official pursuant to
applicable abandoned property laws. Any cash remaining unclaimed by holders
of ARCO Common Shares three years after the Effective Time (or such earlier
date immediately prior to such time as such cash would otherwise escheat to
or become property of any governmental entity or as is otherwise provided
by applicable Law (as defined in Section 2.1.4.2)) shall, to the extent
permitted by applicable Law, become the property of the Surviving
Corporation or BP Amoco, as BP Amoco may determine.
1.3 Section 1.5 of the Agreement shall be amended to add a new
subsection 1.5.9 which shall read in its entirety as follows:
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1.5.9. Notwithstanding the provisions of Sections 1.5.1, 1.5.4 and
1.5.5, any issuance or delivery of ARCO Common Shares to participants under
the ARCO British Long Term Incentive Plan that on and after the Effective
Time would otherwise be required to be made in the form of BP Amoco
Depositary Shares, shall instead be issued or delivered as that number of
BP Amoco Ordinary Shares then represented by such number of BP Amoco
Depositary Shares.
ARTICLE II
Miscellaneous
2.1 Definitions. Capitalized terms used in this Amendment and not
defined herein shall have the respective meanings ascribed to them in the
Agreement.
2.2 Entire Agreement; Restatement. Other than as amended by Article I
above, the Agreement shall remain in full force and effect unaffected hereby.
References in the Agreement to "this Agreement", "herein" and "hereof" shall be
deemed to refer to the Agreement, as amended by this Amendment, and the parties
hereto hereby agree that the Agreement may be restated to reflect the amendments
provided for in this Amendment.
2.3 Counterparts. This Amendment may be executed in any number of
counterparts, each such counterpart being deemed an original instrument, and all
such counterparts shall together constitute the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Amendment to be executed as of the date first written above.
BP AMOCO p.l.c.
By: /s/ X. Xxxxxxxx
---------------------------------
Name: Dr. J.G.S. Xxxxxxxx
Title: Executive Director and
Chief Financial Officer
ATLANTIC RICHFIELD COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman
PRAIRIE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxx Xxxxx
---------------------------------
Name: P.B.P. Xxxxx
Title: President
