AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated as of December 8, 2000 (this "AMENDMENT"), to
the Agreement and Plan of Merger, dated as of February 27, 2000 (the
"AGREEMENT"), among LG&E Energy Corp., a Kentucky corporation (the
"COMPANY"), Powergen plc, an English public limited company
("PARENT"),Powergen US Investments Corp., a Delaware corporation and an
indirect wholly owned subsidiary of Powergen ("US SUBHOLDCO 2"), and Powergen
Acquisition Corp., a Kentucky corporation and a direct wholly owned
subsidiary of US Subholdco 2 ("MERGER SUB").
W I T N E S S E T H:
WHEREAS, the Company, Parent, US Subholdco 2 and Merger Sub desire to
amend the Agreement; and
WHEREAS, Section 9.2 of the Agreement provides that at any time prior
to the Effective Time, the Agreement may be modified or amended by agreement of
the parties, by an instrument in writing executed and delivered by duly
authorized officers of each of the parties hereto; and
WHEREAS, the respective Boards of the Company and Parent have taken all
action necessary to duly authorize, execute and deliver the Agreement and those
modifications as the respective officers executing the Agreement deemed
necessary or appropriate and 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 1.2 of the Agreement shall be amended to read in its
entirety as follows:
"CLOSING. The closing of the Merger (the "CLOSING") shall take
place (i) at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 A.M. on a date to be
mutually agreed between Parent and the Company, which shall
not be later than the tenth Business Day (as defined below)
after the last of the conditions set forth in Article VII
(other than those conditions that by their nature are to be
satisfied at the Closing, but subject to the satisfaction or
waiver of those conditions) shall be satisfied or waived in
accordance with this Agreement or (ii) at such other place and
time and/or on such other date as the Company and Parent may
agree in writing (the "CLOSING DATE"). As used in this
Agreement, the term "BUSINESS DAY" shall mean any day other
than a Saturday, Sunday or a day on which banks in either New
York City or the City of London, England are authorized or
obligated by law or executive order to close."
1.2 Section 6.11(a)(i) and (ii) of the Agreement shall be
amended to read in its entirety as follows:
"(a) STOCK OPTIONS. (i) At the Effective Time, each
Company Option, whether vested or unvested and whether or not it would otherwise
be deemed terminated as a result of the occurrence of the Effective Time, shall
be deemed to constitute an option (a "CONVERTED OPTION") to acquire, on the same
terms and conditions as were applicable under such Company Option, the number of
American Depositary Shares of Parent (the "ADS'S"), each of which represents
four Parent Ordinary Shares, equal to the result (rounded down to the nearest
whole ADS) of multiplying the number of Shares subject to the Company Option
immediately prior to the Effective Time by the Conversion Ratio (as defined
below), at an exercise price per ADS equal to the result (rounded up to the
nearest whole cent) of dividing the per share exercise price of such Company
Option immediately prior to the Effective Time by the Conversion Ratio (it being
understood that the exercise price shall be converted into dollars at the rate
prevailing at the close of business on the business day prior to the Effective
Time); PROVIDED,
HOWEVER, that in the case of any Company Option to which Section 422 of the
Code applies, the adjustments provided for in this Section shall be effected
in a manner consistent with the requirements of Section 424(a) of the Code.
For purposes of this Section, the term "CONVERSION RATIO" means a fraction,
the numerator of which is the average of the high and low sales price of one
Share on the NYSE on the trading day immediately preceding the Effective Time
and the denominator of which is the average of the high and low sales price
of one ADS on the NYSE on the trading day immediately preceding the Effective
Time. Notwithstanding the foregoing, each holder of a Converted Option may,
at any time prior to the close of business on the seventh Business Day
following the Effective Time, elect in writing (which writing shall be
delivered to the Company) to exchange any unexercised Converted Option for an
amount in cash equal to the product of (x) the number of Shares previously
subject to the Company Option (prior to its conversion into the Converted
Option) and (y) the excess of the difference between the Merger Consideration
over the per Share exercise price of such Company Option, less any amount the
Company is required to deduct or withhold with respect to such payment. Each
such Company Option so exchanged shall be immediately canceled, and the
Company shall make prompt payment in respect of any exchanged option.
(ii) Parent shall at the time that a Company Option is
disposed of to the Company and cancelled, issue a Converted Option under a
long-term incentive plan substantially similar to the long-term incentive
Compensation and Benefit Plan of the Company as in existence immediately prior
to the date hereof. At or prior to the Effective Time, Parent shall take all
corporate action necessary to reserve for issuance a sufficient number of Parent
Ordinary Shares for delivery upon exercise of Company Options assumed by it in
accordance with this Section. As soon as practicable after the Effective Time
but in no event later that 10:30 am Eastern Time on the Closing Date, or if the
Closing Date is not a Business Day, by 10:30 am on the first Business Day
following the Closing Date, Parent shall file a registration statement on Form
S-8 (or any successor thereto) with respect to the ADS's subject to such
Converted Options, and shall use its reasonable best efforts to
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maintain the effectiveness of such registration statement (and maintain the
current status of the prospectus or prospectuses contained therein) for so
long as such Converted Options remain outstanding. At or prior to the
Effective Time, the Company shall make all necessary arrangements with
respect to the Stock Plans to permit the assumption of the unexercised
Company Options by Parent pursuant to either clause (x) or (y) of this
subparagraph (ii).
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
Sections 1.1 and 1.2 above, the Agreement shall remain in full force and effect
and unaffected hereby. The Agreement, as amended by this Amendment, is
hereinafter referred to as the "Agreement", 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 to be an original instrument,
and all such counterparts shall together constitute the same agreement.
2.4 GOVERNING LAW AND VENUE; ENFORCEMENT; WAIVER OF JURY TRIAL.
(a) THIS AMENDMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF KENTUCKY WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties agree that irreparable damage would occur in the event that
any of the provisions of this Amendment were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Amendment and to enforce specifically the terms and
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provisions of this Amendment in any court of the United States located in the
Commonwealth of Kentucky, this being in addition to any other remedy to which
they are entitled at law or in equity. The parties hereby irrevocably submit
to the exclusive jurisdiction of the Federal courts of the United States of
America located in the Commonwealth of Kentucky solely in respect of the
interpretation and enforcement of the provisions of this Amendment and of the
documents referred to in this Amendment, and in respect of the transactions
contemplated hereby, and hereby waive, and agree not to assert, as a defense
in any action, suit or proceeding for the interpretation or enforcement
hereof or of any such document, that it is not subject thereto or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that the venue thereof may not be appropriate or that this
Amendment or any such document may not be enforced in or by such courts, and
the parties hereto irrevocably agree that all claims with respect to such
action or proceeding shall be heard and determined in such a Kentucky Federal
court. The parties hereby consent to and grant any such court exclusive
jurisdiction over the person of such parties and over the subject matter of
such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 2.5 or
in such other manner as may be permitted by law shall be valid and sufficient
service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AMENDMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES (i) ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AMENDMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT AND (ii) ANY
RIGHT IT MAY HAVE TO RECEIVE DAMAGES FROM ANY OTHER PARTY BASED ON ANY THEORY OF
LIABILITY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL (INCLUDING LOST PROFITS) OR
PUNITIVE DAMAGES. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH ACTION, SUIT
OR PROCEEDING,
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SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 2.4.
2.5 NOTICES. Any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail (return receipt requested),
postage prepaid, or sent by reputable overnight courier service or by facsimile
(which is confirmed):
IF TO PARENT, US SUBHOLDCO 2 OR MERGER SUB
PowerGen plc
00 Xxx Xxxxx Xxxxxx
Xxxxxx, XX0X 00X
Xxxxxxx
Attention: Xxxxx X. Xxxxxxx, General Counsel and
Company Secretary
fax: x0 00 000 000 0000
(with a copy to
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
fax: (000) 000-0000).
IF TO THE COMPANY
LG&E Energy Group
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. XxXxxx, Executive Vice
President, General Counsel and Corporate
Secretary
fax: (000) 000-0000
(with a copy to
Xxxxxxxx X. Xxxxxxxxxx, Esq.
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Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
fax: (000) 000-0000
and to:
Xxxxx X. Xxxxxx, Esq.
Gardner, Carton, & Xxxxxxx,
Quaker Tower
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000
fax: (000) 000-0000).
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
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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.
LG&E ENERGY CORP.
By: /s/ Xxxxx X. Xxxx
-----------------------
Name: Xxxxx X. Xxxx
Title: Chairman and Chief
Executive Officer
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POWERGEN PLC
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: General Counsel and
Company Secretary
Accepted and Agreed as of:
December 8, 2000
-------------------------
POWERGEN US INVESTMENTS CORP.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
POWERGEN ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
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