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EXHIBIT 2(c)
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT (the "Amendment"), dated as of October 23, 1996, to the
Agreement and Plan of Merger, dated as of August 11, 1996 (the "Merger
Agreement"), by and among Houston Industries Incorporated, a Texas corporation
("HII"), Houston Lighting & Power Company, a Texas corporation and wholly owned
subsidiary of HII ("HL&P"), HI Merger, Inc., a Delaware corporation and direct
wholly owned subsidiary of HII ("Merger Sub"), and NorAm Energy Corp., a
Delaware corporation ("NorAm").
WHEREAS, HII, HL&P, Merger Sub and NorAm have agreed to amend the
Merger Agreement; and
WHEREAS, the respective Boards of Directors of HII, HL&P, Merger
Sub and NorAm have approved and adopted this Amendment.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Amendment of the Merger Agreement.
(a) Section 2.1(c) of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
"(c) Exchange of HII Common Stock. Each share of HII Common
Stock issued and outstanding immediately prior to the HII/HL&P Merger
Effective Time (other than shares to be canceled in accordance with
Section 2.1(b)) shall be converted into one share of common stock, no
par value, of HII/HL&P Merger Surviving Corporation ("HL&P Common
Stock"), together with the corresponding number of associated rights
("HL&P Stock Purchase Rights") to purchase one one-thousandth of a share
of Series A Preference Stock, without par value, of HII/HL&P Merger
Surviving Corporation pursuant to an Amended and Restated Rights
Agreement between the HII/HL&P Merger Surviving Corporation and Texas
Commerce Bank National Association, as Rights Agent (the "HL&P Rights
Agreement"). The HII Rights Agreement shall be amended and restated to
become the HL&P Rights Agreement and shall provide for (i) the HII Stock
Purchase Rights to be converted into HL&P Stock Purchase Rights and (ii)
the HL&P Stock Purchase Rights to attach to shares of HL&P Common Stock
issued as consideration in the NorAm Merger, and to make such other
changes as HL&P determines are appropriate. All references in this
Agreement to the HL&P Common Stock to be received pursuant to the
Mergers shall be deemed to include the associated HL&P Stock Purchase
Rights. All such shares of HII Common Stock, when so converted, shall
no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist, and each holder of a certificate representing
any such shares shall cease to have any rights with respect thereto,
except the right to receive the shares of HL&P Common Stock."
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(b) Section 2.2(f) of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
"(f) NorAm Convertible Debentures. HL&P shall agree to be
bound by the conversion provisions of NorAm's 6% Convertible
Subordinated Debentures due 2012 (the "NorAm Convertible Debentures"),
such that following the Effective Time, each outstanding NorAm
Convertible Debenture will be convertible into the amount of Stock
Consideration (and cash in lieu of fractional shares of HL&P Common
Stock) and Cash Consideration which the holder thereof would have had
the right to receive after the Effective Time if such NorAm Convertible
Debenture had been converted immediately prior to the Effective Time and
the holder thereof had made the Stock Election and received the Stock
Consideration with respect to 50% of the shares of NorAm Common Stock
issuable upon such conversion of the holder's NorAm Convertible
Debentures and made the Cash Election and received the Cash
Consideration with respect to the remaining 50% of such NorAm Common
Stock."
(c) Section 2.2(g) of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
"(g) NorAm Convertible Junior Debentures. HL&P shall agree to
be bound by the conversion provisions of NorAm's 6 1/4% Convertible
Junior Subordinated Debentures (the "NorAm Convertible Junior
Debentures"), such that following the Effective Time, each outstanding
NorAm Convertible Junior Debenture will be convertible into the amount
of Stock Consideration (and cash in lieu of fractional shares of HL&P
Common Stock) and Cash Consideration which the holder thereof would have
had the right to receive after the Effective Time if such NorAm
Convertible Junior Debenture had been converted immediately prior to the
Effective Time and the holder thereof had made the Stock Election and
received the Stock Consideration with respect to 50% of the shares of
NorAm Common Stock issuable upon such conversion of the holder's NorAm
Convertible Junior Debentures and made the Cash Election and received
the Cash Consideration with respect to the remaining 50% of such NorAm
Common Stock."
(d) Section 2.3(c) of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
"(c) Exchange Procedures. Upon surrender of a certificate or
certificates which, immediately prior to the Effective Time, represented
outstanding shares of NorAm Common Stock (the "Certificates") for
cancellation to the Exchange Agent or to such other agent or agents as
may be appointed by HL&P, together with a properly completed, signed and
submitted Form of Election (as hereinafter defined), and any other
required documents, the holder of such Certificate shall be entitled to
receive in exchange therefor a certificate representing that number of
whole shares of HL&P Common Stock which such holder has the right to
receive pursuant to the provisions of this Article II and cash in lieu
of fractional shares of HL&P Common Stock as contemplated by Section
2.3(f) if such holder is entitled to receive the Stock Consideration, or
cash, in an amount equal to the Cash Consideration, if such holder is
entitled to receive the Cash Consideration, and the Certificate so
surrendered shall forthwith be canceled. In the event of a transfer of
ownership of NorAm Common Stock which is not registered in the transfer
records of NorAm, a certificate representing the
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appropriate number of shares of HL&P Common Stock may be issued to a
transferee if the Certificate representing such NorAm Common Stock is
presented to the Exchange Agent accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable
stock transfer taxes have been paid. Until surrendered as contemplated
by this Section 2.3, each Certificate shall be deemed at any time after
the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration. The Exchange Agent shall not be
entitled to vote or exercise any rights of ownership with respect to the
HL&P Common Stock held by it from time to time hereunder, except that it
shall receive and hold all dividends or other distributions paid or
distributed with respect thereto for the account of persons entitled
thereto."
(e) Section 2.4(b) of the Merger Agreement is hereby amended
by adding the following to the end of Section 2.4(b):
"If the number of shares of NorAm Common Stock to which Cash Elections
have been made is greater than or equal to the Cash Election Number,
then no Non-Election Shares shall be deemed to be Cash Election Shares.
If the number of shares of NorAm Common Stock to which Stock Elections
have been made is greater than or equal to the Stock Election Number,
then no Non-Election Shares shall be deemed to be Stock Election
Shares. If the number of shares of NorAm Common Stock to which Cash
Elections have been made is less than the Cash Election Number, then a
number of Non-Election Shares equal to the difference between the Cash
Election Number and the number of shares of NorAm Common Stock to which
Cash Elections have been made (but no more than such number) shall be
deemed to be Cash Election Shares. If the number of shares of NorAm
Common Stock to which Stock Elections have been made is less than the
Stock Election Number, then a number of Non-Election Shares equal to the
difference between the Stock Election Number and the number of shares of
NorAm Common Stock to which Stock Elections have been made (but no more
than such number) shall be deemed to be Stock Election Shares. "
(f) Section 2.4(c) of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
"(c) Procedure for Elections. Elections pursuant to Section
2.4(b) shall be made on a Form of Election and Letter of Transmittal to
be mutually agreed upon by NorAm and HL&P (a "Form of Election") to be
provided by the Exchange Agent for that purpose to holders of record of
NorAm Common Stock at least 20 business days prior to the Closing Date
(which date shall be publicly announced by HL&P as soon as practicable
but in no event less than five Trading Days prior to the Closing Date).
Elections shall be made by mailing to the Exchange Agent a duly
completed Form of Election. To be effective, a Form of Election must be
(i) properly completed, signed and submitted to the Exchange Agent at
its designated office by 5:00 p.m. on the business day that is the
Trading Day immediately prior to the Closing Date (the "Election
Deadline") and (ii) accompanied by the Certificates as to which the
election is being made (or by an appropriate guarantee of delivery of
such Certificates by a trust company organized in the United States or a
member of a registered national securities exchange or a member of the
National Association of Securities Dealers, Inc., provided such
Certificates are in fact delivered to the Exchange Agent no later than
5:00 p.m. on the fourth business day after the Election Deadline).
NorAm shall use its best efforts
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to make a Form of Election available to all persons who become holders
of record of NorAm Common Stock between the date of mailing the Form of
Election described in the first sentence of this Section 2.4(c) and the
Election Deadline. HL&P shall determine, in its sole and absolute
discretion, which authority it may delegate in whole or in part to the
Exchange Agent, whether Forms of Election have been properly completed,
signed and submitted or revoked. The decision of HL&P (or the Exchange
Agent, as the case may be) in such matters shall be conclusive and
binding. Neither HL&P nor the Exchange Agent will be under any
obligation to notify any person of any defect in a Form of Election
submitted to the Exchange Agent. A holder of shares of NorAm Common
Stock that does not submit (i) a properly completed Form of Election and
(ii) either (x) the Certificates as to which the election is made or (y)
an appropriate guarantee of delivery of such Certificates prior to the
Election Deadline shall be deemed to have made a Non-Election."
(g) Exhibit A to the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"Amendments to Restated Articles of Incorporation
of
Houston Lighting & Power Company
The following amendments to the Restated Articles of
Incorporation of HL&P will be made, subject to shareholder approval, at the
HII/HL&P Merger Effective Time or the Alternative Merger Effective Time, as the
case may be, in order to (i) change the name of the HII/HL&P Merger Surviving
Corporation or the Alternative Merger Surviving Corporation, as the case may
be, (ii) change the authorized capital stock of the HII/HL&P Merger Surviving
Corporation or the Alternative Merger Surviving Corporation, as the case may
be, and (iii) change the terms of the common stock of the HII/HL&P Merger
Surviving Corporation or the Alternative Merger Surviving Corporation, as the
case may be.
FIRST: The first amendment alters or changes Article I of the
Restated Articles of Incorporation and the full text of such altered article is
as follows:
"The name of this corporation is 'Houston Industries
Incorporated.'"
SECOND: The second amendment alters or changes the first
paragraph of Article VI of the Restated Articles of Incorporation and the full
text of such altered paragraph is as follows:
"The number of shares of the total authorized capital stock of
the Company is 720,000,000 shares, of which 10,000,000 shares are classified as
Preferred Stock, without par value, 10,000,000 shares are classified as
Preference Stock, without par value, and the balance of 700,000,000 shares are
classified as Common Stock, without par value."
THIRD: The third amendment alters or changes "Division D--Common
Stock" of Article VI of the Restated Articles of Incorporation and the full
text of such altered division is as follows:
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"1. Dividends. Dividends may be paid on the Common Stock, as
the Board of Directors shall from time to time determine, out of any assets of
the Company available for such dividends after full cumulative dividends on all
outstanding shares of capital stock of all series ranking senior to the Common
Stock in respect of dividends and liquidation rights (referred to in this
Division D as "stock ranking senior to the Common Stock") have been paid, or
declared and a sum sufficient for the payment thereof set apart, for all past
quarterly dividend periods, and after or concurrently with making payment of or
provision for dividends on the stock ranking senior to the Common Stock for the
then current quarterly dividend period.
2. Distribution of Assets. In the event of any liquidation,
dissolution or winding up of the Company, or any reduction or decrease of its
capital stock resulting in a distribution of assets to the holders of its
Common Stock, after there shall have been paid to or set aside for the holders
of the stock ranking senior to the Common Stock the full preferential amounts
to which they are respectively entitled, the holders of the Common Stock shall
be entitled to receive, pro rata, all of the remaining assets of the Company
available for distribution to its stockholders. The Board of Directors, by
vote of a majority of the members thereof, may distribute in kind to the
holders of the Common Stock such remaining assets of the Company, or may sell,
transfer or otherwise dispose of all or any of the remaining property and
assets of the Company to any other corporation or other purchaser and receive
payment therefor wholly or partly in cash or property, and/or in stock of any
such corporation, and/or in obligations of such corporation or other purchaser,
and may sell all or any part of the consideration received therefor and
distribute the same or the proceeds thereof to the holders of the Common Stock.
3. Voting Rights. Subject to the voting rights expressly
conferred under prescribed conditions upon the stock ranking senior to the
Common Stock, the holders of the Common Stock shall exclusively possess full
voting power for the election of directors and for all other purposes."
SECTION 2. Consent to Amend HL&P Articles of Incorporation. Pursuant to
Section 4.2(b) of the Merger Agreement, NorAm hereby consents (i) to the
proposed amendment of HL&P's Restated Articles of Incorporation whereby a class
of Preference Stock, without par value, consisting of 10,000,000 authorized
shares would be created, which Preference Stock would rank junior to HL&P's
preferred stock, (ii) to the designation of a series of Preference Stock, the
Series A Preference Stock, the shares of which series will be purchasable upon
the exercise of the HL&P Stock Purchase Rights (as defined in the Merger
Agreement), and to the establishment of the terms, preferences, limitations and
relative rights of the Series A Preference Stock, and (iii) to the proposed
amendment of HL&P's Restated Articles of Incorporation whereby the two-thirds
vote required by the Texas Business Corporation Act in connection with (w)
certain plans of merger, consolidation or exchange, (x) certain dispositions of
assets, (y) dissolution and (z) certain amendments to HL&P's Restated Articles
of Incorporation would be amended to require only the approval of a majority of
HL&P's shareholders entitled to vote on such matters.
SECTION 3. Miscellaneous.
(a) Except as expressly set forth in Section 1, all the
provisions of the Merger Agreement are hereby ratified and confirmed by all the
parties and shall remain in full force and
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effect. All references in the Merger Agreement to "this Agreement" shall be
read as references to the Merger Agreement, as amended by this Amendment.
(b) This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Texas, without giving effect to the
principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, each party has caused this Agreement to be
signed by its respective officers thereunto duly authorized, all as of the date
first written above.
HOUSTON INDUSTRIES INCORPORATED
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Chairman, Chief Executive Officer and President
HOUSTON LIGHTING & POWER COMPANY
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Chairman, Chief Executive Officer and President
HI MERGER, INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Chairman, Chief Executive Officer and President
NORAM ENERGY CORP.
By: /s/ T. Xxxxxx Xxxxx
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T. Xxxxxx Xxxxx
Chairman of the Board, President and
Chief Executive Officer
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