AMENDMENT
TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
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This Amendment, dated as of July 26, 1994 (the "Amendment"),
amends to the extent specified herein the Agreement and Plan of
Reorganization, dated as of December 11, 1992, as amended and restated on
July 2, 1993 and as of September 10, 1993 and as further amended as of June
20, 1994 (the "Merger Agreement"), by and among The Cincinnati Gas &
Electric Company, an Ohio corporation ("CG&E"), PSI Resources, Inc., an
Indiana corporation ("PSI"), PSI Energy, Inc., an Indiana corporation
("Energy"), CINergy Corp., a Delaware corporation (the "Company") and
CINergy Sub, Inc., an Ohio corporation ("CINergy Sub"). Capitalized terms
used in this Amendment and not otherwise defined in this Amendment shall
have such meanings as are ascribed to such terms in the Merger Agreement.
W I T N E S S E T H
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WHEREAS, the parties to the Merger Agreement deem it to be in
their best interest to amend Sections 2.3(c) and (d) and 6.1 (b), (c) and
(h) of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties, each intending to be legally bound hereby, agree as follows:
1. The last sentence of Section 2.3(c) of the Merger Agreement
is hereby amended and restated to read in its entirety as follows:
"Until surrendered as contemplated by this Section 2.3, each
Certificate shall be deemed at any time after the Effective Time
to represent (i) the right to receive upon such surrender the
certificate representing Company Shares and cash in lieu of any
fractional shares of Company Common Stock as contemplated by this
Section 2.3 and (ii) all other rights attributable to the Company
Shares including the payment of any dividend or other
distribution declared or made with respect to Company Shares with
a record date after the Effective Time."
2. Section 2.3(d) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
"Notwithstanding the last sentence of Section 2.3(c), at any time
after the Effective Time the Board of Directors of the Company
may decide that no dividends or other distributions declared or
made with respect to Company Shares with a record date after the
time of said decision (the "Decision Time") shall be paid to the
holder of any unsurrendered Certificate with respect to the
Company Shares represented thereby. In such event, and subject
to the effect of unclaimed property, escheat and other applicable
laws, following surrender of any such Certificate, there shall be
paid to the record holder of the certificates representing whole
Company Shares issued in exchange therefor, without interest, (i)
at the time of such surrender, the amount of dividends or other
distributions with a record date after the Decision Time
theretofore paid with respect to such whole Company Shares and
(ii) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Decision Time
but prior to surrender and a payment date subsequent to surrender
payable with respect to such whole Company Shares, as the case
may be."
3. The last sentence of Section 6.1(b) of the Merger Agreement
is hereby amended and restated to read in its entirety as follows:
"Notwithstanding the foregoing, (i) Energy may redeem all or any
portion of its (x) Energy Preferred Stock, 3.50% Series, of which
42,017 shares are outstanding, (y) Energy Preferred Stock, 8.52%
Series, of which 211,190 shares are outstanding and (z) Energy
Preferred Stock, 8.96% Series, of which 216,900 shares are
outstanding and (ii) CG&E's redemption of 400,000 shares of its
CG&E Preferred Stock, 9.28% Series, is permitted."
4. The first sentence of Section 6.1(c) is hereby amended to
change the number 3,700,000 in clause (ii)(x) to 5,000,000.
5. Clause (ii) of section 6.1(h) of the Merger Agreement is
hereby amended and restated to read in its entirety as follows:
"(ii) long-term indebtedness not aggregating more than
(x) in the case of PSI and its subsidiaries, $550
million and (y) in the case of CG&E and its
subsidiaries, $300 million, in each case other than in
connection with the refunding of outstanding long-term
indebtedness which refunding is at a lower interest
rate than that of the original indebtedness;"
6. Without limiting in any respect any of the representations
and warranties set forth in the Merger Agreement, each party represents and
warrants with respect to itself that this Amendment has been duly and
validly authorized, executed and delivered and constitutes a valid and
binding obligation of each such party enforceable against such party in
accordance with its terms.
7. The Merger Agreement is hereby reaffirmed in its entirety,
except to the extent specifically amended hereby.
8. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
9. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, CG&E, PSI, Energy, CINergy Sub and the
Company have caused this Amendment to be signed by their respective
officers thereunto duly authorized as of the date first written above.
THE CINCINNATI GAS & ELECTRIC
COMPANY
By: Jackson H. Randolph
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Name: Jackson H. Randolph
Title: Chairman, President and
Chief Executive Officer
PSI RESOURCES, INC.
By: James E. Rogers
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Name: James E. Rogers
Title: Chairman and Chief
Executive Officer
PSI ENERGY, INC.
By: James E. Rogers
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Name: James E. Rogers
Title: Chairman, President
and Chief Executive
Officer
CINERGY CORP.
By: Jackson H. Randolph
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Name: Jackson H. Randolph
Title: Chairman and Chief
Executive Officer
CINERGY SUB, INC.
By: Jackson H. Randolph
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Name: Jackson H. Randolph
Title: Chairman and Chief
Executive Officer