EXHIBIT Xx. 00.0
Xxxxxxxxx Xx. 0 to Agreement and Plan of Merger
AMENDMENT NO. 2, dated as of March 27, 2000 (this "Amendment"), to the
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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
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company ("BP Amoco"), ATLANTIC RICHFIELD COMPANY, a Delaware corporation
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("ARCO") and PRAIRIE HOLDINGS, INC., a Delaware corporation and direct wholly
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owned subsidiary of BP Amoco ("Merger Sub").
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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
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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
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Agent") for the purpose of accepting Certificates to be surrendered by
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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
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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
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Election") all or part of the Merger Consideration to which such holder is
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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
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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
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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
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Agreement"). BP Amoco shall issue the BP Amoco Ordinary Shares referred to
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in 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
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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
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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
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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 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.
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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
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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
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Shares") shall constitute a fractional interest in a BP Amoco Depositary
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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.
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
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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:
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
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2.1 Definitions. Capitalized terms used in this Amendment and not
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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
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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
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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
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counterparts, each such counterpart being deemed an original instrument, and all
such counterparts shall together constitute the same agreement.
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/ J.G.S. XXXXXXXX
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Name: Dr. J.G.S. Xxxxxxxx
Title: Executive Director and
Chief Financial Officer
ATLANTIC RICHFIELD COMPANY
By:/s/ XXXX X.XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chairman
PRAIRIE HOLDINGS,INC.
By: /s/ XXXXX X.X. XXXXX
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Name: Xxxxx X.X. Xxxxx
Title: President
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