AMENDMENT NO. 3
TO AGREEMENT AND PLAN OF
REORGANIZATION AND MERGER
BY AND AMONG U.S. ENERGY SYSTEMS, INC.,
USE ACQUISITION CORP. AND
XXXXXX ALTERNATIVE POWER CORPORATION
This Amendment No. 3 to Agreement and Plan of Reorganization and Merger
(the "Amendment") is made as of the 19th day of January, 2001 by and among U.S.
Energy Systems, Inc. ("Parent"), USE Acquisition Corp. ("Merger Sub"), and
Xxxxxx Alternative Power Corporation (the "Company"). Unless indicated
otherwise, capitalized terms shall have the same meanings herein as they have in
the Merger Agreement (as defined below).
W I T N E S S E T H
WHEREAS, Parent, Merger Sub and the Company previously entered into (i)
that certain Agreement and Plan of Reorganization and Merger dated as of
November 28, 2000, (ii) that certain Amendment No. 1 to the Agreement dated as
of the 11th day of December, 2000 and (iii) that certain Amendment No. 2 to the
Agreement dated as of the 19th day of December, 2000 (collectively the "Merger
Agreement"); and
WHEREAS, the Parent, Merger Sub and the Company now wish to amend the
Agreement.
NOW, THEREFORE, in consideration of $10.00 and other consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Section 2.04 of the Merger Agreement is hereby amended by deleting the
existing paragraph in its entirety and inserting in its place the following
paragraph:
SECTION 2.04. Closing. The closing (the "Closing") shall occur at the
offices of Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx P.C., 1345 Avenue
of the Americas, New York, New York on the first Business Day of the month
following the month in which the Parent's Stockholder Approval is obtained,
but no later than February 1, 2001, (the "Closing Date"); provided that
such Closing Date shall be extended by a number of days equal to the number
of days, measured inclusively, contained in the period commencing on
December 20, 2000 and ending on the date on which Parent receives written
notice from the SEC that the Proxy Statement referred to in Section 6.01
has been approved for delivery to the Parent's shareholders; provided,
further, that (i) if such extended Closing Date is not a Business Day then
the closing shall be further extended to the next Business Day.
Notwithstanding anything to the contrary herein, the closing date shall not
be extended beyond May 1, 2001 (the "Termination Date"). The
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parties will proceed diligently and use their respective diligent efforts,
exercised in good faith, to effect the Closing on or before the Closing
Date. The Closing shall constitute the acts which take place on the Closing
Date by which the transactions contemplated by this Agreement are
consummated.
2. The definition of "Ordinary Course Working Capital" contained in Annex 1
to the Merger Agreement is hereby amended by deleting "$700,000" from clause
(ii) of the third sentence and replacing it with "$800,000."
3. Except as amended hereby, the Merger Agreement is as hereby ratified and
confirmed and, as so amended, remains in full force and effect on the date
hereof.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be executed as of the date first written above.
U.S. ENERGY SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: President and
Chief Operating Officer
USE ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: President
XXXXXX ALTERNATIVE POWER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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