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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
AMENDMENT NO. 1
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File Number: 333-13791
ENRON OREGON CORP.
(Exact name of registrant as specified in its charter)
Oregon 76-0511381
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Enron Bldg.
1400 Smith Street
Houston, Texas 77002
(Address of principal executive offices) (Zip code)
(713) 853-6161
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
[X] Yes [ ] No
As of March 31, 1997 there were 1,000 shares of common stock outstanding,
each of which was owned by the registrant's parent, Enron Corp.
Page 1 of 5 Pages
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ENRON OREGON CORP.
FORM 10-Q
INDEX
Page No.
--------
PART I - FINANCIAL INFORMATION
ITEM 1. Financial Statements (see Note below) 3
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations (see Note below) 3
PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings 3
ITEM 2. Changes in Securities 3
ITEM 3. Defaults upon Senior Securities 4
ITEM 4. Submission of Matters to a Vote of Security Holders 4
ITEM 6. Exhibits and Reports on Form 8-K 4
SIGNATURES 5
Page 2 of 5 Pages
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Part I Financial Information
Item 1. Financial Statements (see Note below)
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (see Note below)
NOTE: Enron Oregon Corp. (the "Company" or "New Enron") was incorporated
under the laws of the State of Oregon on July 19, 1996 as a wholly owned
subsidiary of Enron Corp. ("Enron"). The Company was formed solely for the
purpose of effecting the transactions contemplated by the Amended and Restated
Agreement and Plan of Merger dated as of July 20, 1996 and amended and restated
as of September 24, 1996, as amended by the First Amendment thereto dated as of
April 14, 1997 (the "Merger Agreement") among Enron, the Company and Portland
General Corporation, an Oregon corporation ("PGC").
Under the Merger Agreement, and subject to the terms and conditions
thereof, (i) Enron will be reincorporated as an Oregon corporation by merging
with and into New Enron (the "Reincorporation Merger") and (ii) immediately
thereafter, PGC will merge with and into New Enron, with New Enron being the
surviving corporation (the "PGC Merger" and, together with the Reincorporation
Merger, the "Mergers"). The Merger Agreement provides that if certain regulatory
reforms are enacted, the structure of the transactions contemplated by the
Merger Agreement will be revised to eliminate the Reincorporation Merger.
Completion of the Mergers remains subject to approval by the PGC
shareholders on or about June 24, 1997, and satisfaction of regulatory approvals
and other customary closing conditions, including approval by the Oregon Public
Utility Commission.
As a result, New Enron has not issued any of its authorized shares, except
for 1,000 shares of Common Stock issued to Enron in connection with the
formation of New Enron. Furthermore, New Enron has no assets, liabilities or
equity as of March 31, 1997 (or as of the date hereof), except for immaterial
amounts of cash contributed by Enron in connection with the formation of New
Enron. In addition, New Enron has conducted no operations and has incurred no
liabilities.
Accordingly, there are no financial statements or Management's Discussion
and Analysis of Financial Condition and Results of Operations in this report.
Upon the consummation of the Mergers, the assets, liabilities and equity
of Enron and PGC will become assets, liabilities and equity of New Enron and
will be included in New Enron's financial statements.
Part II Other Information
Item 1. Legal Proceedings
None.
Item 2. Changes in Securities
As contemplated by the Merger Agreement, the Articles of
Incorporation of New Enron were amended and restated on October 7, 1996.
However, because Enron is the only shareholder of New Enron, and will be the
only shareholder until the consummation of the Mergers, the amendments will not
affect any security holder (other than Enron) until the Mergers have been
consummated. The Restated Articles of Incorporation are filed as Exhibit 3.1 to
this Quarterly Report and are incorporated by reference herein.
Page 3 of 5 Pages
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Furthermore, the forms of Series Designation for the New Enron
Cumulative Second Preferred Stock and 9.142% Perpetual Second Preferred Stock
are attached to this Quarterly Report as Exhibits 3.3 and 3.4, respectively, and
are incorporated by reference herein. However, such series designations have not
yet been adopted by the New Enron Board of Directors or filed with the Secretary
of State of the State of Oregon.
Item 3. Defaults upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
2.1 Amended and Restated Agreement and Plan of Merger dated as of
July 20, 1996 and amended and restated as of September 24, 1996
among Enron, New Enron and PGC (incorporated by reference to
Exhibit 2.1 to New Enron's Registration Statement on Form S-4,
Registration No. 333-13791).
2.2 First Amendment to Amended and Restated Agreement and Plan of
Merger, dated as of April 14, 1997, by and among Enron, New
Enron and PGC.
3.1 Restated Articles of Incorporation of New Enron (incorporated by
reference to Exhibit 3.1 to New Enron's Registration Statement
on Form S-4, Registration No. 333-13791).
3.2 Form of Bylaws of New Enron (incorporated by reference to
Exhibit 3.2 to New Enron's Registration Statementon Form S-4,
Registration No. 333-13791).
3.3 Form of Series Designation for the New Enron Cumulative Second
Preferred Convertible Stock (incorporated by reference to
Exhibit 3.3 to New Enron's Registration Statement on Form S-4,
Registration No. 333-13791).
3.4 Form of Series Designation for the New Enron 9.142% Perpetual
Second Preferred Stock (incorporated by reference to Exhibit
3.4 to New Enron's Registration Statement on Form S-4,
Registration No. 333-13791).
27 Financial Data Schedule.
(b) Reports on Form 8-K.
None.
Page 4 of 5 Pages
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this amended report to be signed on its behalf by the
undersigned thereunto duly authorized.
ENRON OREGON CORP.
Date: May 14, 1997 By: /s/ William D. Gathmann
-------------------------------
Name: William D. Gathmann
Title: Vice President, Finance and
Treasurer
(Principal Financial Officer)
Page 5 of 5 Pages
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EXHIBIT INDEX
2.2 -- First Amendment to Amended and Restated Agreement and Plan of
Merger, dated as of April 14, 1997, by and among Enron, New
Enron and PGC.
27 -- Finanacial Data Schedule
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EXHIBIT 2.2
FIRST AMENDMENT TO AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND
PLAN OF MERGER, dated as of April 14, 1997 (this "Amendment"), is by and among
Enron Corp., a Delaware corporation ("Enron"), Portland General Corporation, an
Oregon corporation ("PGC"), and Enron Oregon Corp. (formerly New Falcon Corp.),
an Oregon corporation and wholly owned subsidiary of Enron (the "Company").
WHEREAS, the parties hereto have entered into that certain
Amended and Restated Agreement and Plan of Merger, dated as of July 20, 1996
and amended and restated as of September 24, 1996 (as amended hereby, the
"Agreement") (capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Agreement);
WHEREAS, the Mergers and the transactions contemplated by the
Agreement have been approved by the holders of Enron Common Stock at the Enron
Special Meeting and by the holders of the PGC Common Stock at the PGC Special
Meeting, each of which meetings was held on November 12, 1996;
WHEREAS, the Mergers and the transactions contemplated by the
Agreement have received all regulatory approvals required in connection
therewith, with the exception of the approval of the OPUC;
WHEREAS, the parties desire to amend certain provisions of the
Agreement in order to facilitate receipt of OPUC's approval of Enron's merger
approval application; and
WHEREAS, the boards of directors of Enron and PGC have
approved and deemed it advisable and in the best interests of their respective
shareholders to consummate the transactions on the terms set forth in the
Agreement, as amended hereby;
NOW THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
1. Section 2.2(b) of the Agreement is hereby amended so that the
first sentence thereof is deleted and replaced with the following:
Each share of PGC Common Stock issued and outstanding immediately
prior to the Second Effective Time (other than shares canceled
pursuant to Section 2.2(a)) shall be converted into 0.9825 shares of
Company Common Stock (the "PGC Conversion Ratio").
2. Sections 2.5(b) and (c) of the Agreement are hereby amended by
replacing each reference to "$41.75" with a reference to "$40.25." The parties
acknowledge that although Section 2.5 also contains provisions relating to the
adjustment of the Ceiling Price and the Floor Price, the
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parties agree that the provisions of the Agreement relating to the Ceiling
Price and the Floor Price ceased to be applicable upon the obtaining of the PGC
Shareholders' Approval and the Enron Shareholders' Approval.
3. The parties acknowledge that references in the Agreement to
the term "as of the date hereof," or "as of the date of this Agreement" shall
continue to refer to July 20, 1996, unless otherwise specified. Unless
otherwise specified, each reference in the Agreement (or in any other document
referring to the Agreement) to "this Agreement" shall be to the Agreement, as
amended hereby.
4. Section 4.8 of the Agreement is hereby amended to read in its
entirety as follows, and shall be deemed to be made as of the date of this
Amendment:
Section 4.8 Registration Statement and Proxy Statement.
None of the information supplied or to be supplied by or on behalf of
Enron that is included or incorporated by reference in (i) (A) the
registration statement on Form S-4 to be filed with the SEC by the
Company in connection with the issuance of shares of Company Common
Stock in the PGC Merger (the "Registration Statement") or (B) the
Post-Effective Amendment (as defined in Section 7.2(a)) will, at the
time the Registration Statement or the Post-Effective Amendment
becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the joint proxy statement/prospectus in
definitive form, relating to the meetings of the shareholders of PGC
and Enron to be held in connection with the Mergers and the prospectus
relating to the Company Common Stock to be issued in the PGC Merger
(the "Joint Proxy Statement") will, at the date such document is
mailed to such shareholders and, as the same may be amended or
supplemented, at the times of such meetings, contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading and (iii) the
Supplemental Proxy Statement (as defined in Section 7.20(a)) in
definitive form, relating to the Supplemental PGC Shareholders'
Meeting (as defined in Section 7.20(e)) will, at the date such
document is mailed to the shareholders of PGC and, as the same may be
amended or supplemented, at the times of such meeting, contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. All
documents that Enron is responsible for filing with the SEC in
connection with the transactions contemplated herein shall comply as
to form in all material respects with the applicable requirements of
the Securities Act and the rules and regulations thereunder and the
Exchange Act and the rules and regulations thereunder.
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5. Article IV of the Agreement is hereby amended by adding the
following representations, which are made as of the date of this Amendment:
Section 4.18 Authority, Non-Contravention and Statutory
Approvals relating to the Agreement As Amended by the First Amendment.
(a) Authority. Enron and the Company have all requisite
power and authority to enter into the First Amendment (as defined in
Section 4.19) and, subject to obtaining the Enron Required Statutory
Approvals, to consummate the transactions contemplated by this
Agreement. The execution and delivery of the First Amendment and the
consummation by Enron and the Company of the transactions contemplated
by this Agreement have been duly authorized by all necessary corporate
action on the part of Enron or the Company, as the case may be. The
First Amendment has been duly and validly executed and delivered by
Enron and the Company and, assuming the due authorization, execution
and delivery of this Agreement by PGC, the Agreement constitutes the
legal, valid and binding obligation of Enron and the Company,
enforceable against Enron and the Company in accordance with its
terms.
(b) Non-Contravention. Except as disclosed in Section
4.4(b) of the Enron Disclosure Schedule, the execution and delivery of
the First Amendment by Enron do not, and the consummation of the
transactions contemplated by this Agreement will not, result in an
Enron Violation under any provisions of (i) the certificate of
incorporation, bylaws or similar charter documents of Enron or any of
its subsidiaries or, to Enron's knowledge, any of its joint ventures,
(ii) subject to obtaining the Enron Required Statutory Approvals, any
statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any Governmental Authority,
applicable to Enron or any of its subsidiaries or, to Enron's
knowledge, any of its joint ventures, or any of their respective
properties or assets or (iii) subject to obtaining the Enron Required
Consents, any note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease or other instrument,
obligation or agreement of any kind to which Enron or any of its
subsidiaries or, to Enron's knowledge, any of its joint ventures, is
now a party or by which any of them or any of their respective
properties or assets may be bound or affected, excluding from the
foregoing clauses (ii) and (iii) such Enron Violations as would not
have, in the aggregate, an Enron Material Adverse Effect.
(c) Statutory Approvals. Except for (i) the OPUC
Approval (as defined in Section 7.3(a)), (ii) a declaration of
effectiveness by the SEC of the Post-Effective Amendment (as defined
in Section 7.2), (iii) the matters set forth in items (c) and (f) on
Section 4.4(c) of the Enron Disclosure Schedule, (iv) those
declarations, filings, registrations, notices, authorizations,
consents, findings or approvals that have already been made and (v)
any supplemental filings relating to any of the foregoing required by
the execution of the First Amendment or the transactions contemplated
thereby, there are no Enron Required Statutory Approvals in connection
with the execution and delivery of the First Amendment
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by Enron and the Company or the consummation by Enron and the Company
of the transactions contemplated by this Agreement the failure to
obtain, make or give which would have, in the aggregate, an Enron
Material Adverse Effect.
Section 4.19 Vote Required for First Amendment. No
additional vote by the holders of any capital stock of Enron is
required in connection with the First Amendment to this Agreement,
which amendment was executed as of April 14, 1997 (the "First
Amendment").
6. Section 5.8 of the Agreement is hereby amended to read in its
entirety as follows, and shall be deemed to be made by PGC as of the date of
this Amendment:
Section 5.8 Registration Statement and Proxy Statement.
None of the information supplied or to be supplied by or on behalf of
PGC that is included or incorporated by reference in (i) (A) the
Registration Statement or (B) the Post-Effective Amendment will, at
the time the Registration Statement or the Post-Effective Amendment
becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Joint Proxy Statement will, at the
date that document is mailed to the shareholders of PGC and Enron and,
as the same may be amended or supplemented, at the times of the
meetings of such shareholders to be held in connection with the
Merger, contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading and (iii) the Supplemental Proxy Statement will, at the
date that document is mailed to the shareholders of PGC and, as the
same may be amended or supplemented, at the time of the Supplemental
PGC Shareholders Meeting contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading. All documents that PGC is responsible for
filing with the SEC in connection with the transactions contemplated
herein shall comply as to form in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations thereunder and the Exchange Act and the rules and
regulations thereunder.
7. Article V of the Agreement is hereby amended by adding the
following representations, which are made as of the date of this Amendment:
Section 5.18 Authority, Non-Contravention and Statutory
Approvals relating to the Agreement As Amended by the First Amendment.
(a) Authority. PGC has all requisite power and authority
to enter into the First Amendment and, subject to the Supplemental PGC
Shareholders' Approval (as defined in Section 5.19) and the PGC
Required Statutory Approvals, to consummate the transactions
contemplated by this Agreement. The execution and delivery of the
First Amendment and
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the consummation by PGC of the transactions contemplated by this
Agreement and thereby have been duly authorized by all necessary
corporate action on the part of PGC, subject to obtaining the
Supplemental PGC Shareholders' Approval. The First Amendment has been
duly and validly executed and delivered by PGC and, assuming the due
authorization, execution and delivery hereof by Enron and the Company,
constitutes the legal, valid and binding obligation of PGC enforceable
against PGC in accordance with its terms.
(b) Non-Contravention. Except as disclosed in Section
5.4(b) of the PGC Disclosure Schedule, the execution and delivery of
the First Amendment by PGC do not, and the consummation of the
transactions contemplated by this Agreement will not, result in a PGC
Violation under any provisions of (i) the articles of incorporation,
bylaws or similar governing documents of PGC or any of its
subsidiaries or joint ventures, (ii) subject to obtaining the PGC
Required Statutory Approvals and the Supplemental PGC Shareholders'
Approval, any statute, law, ordinance, rule, regulation, judgment,
decree, order, injunction, writ, permit or license of any Governmental
Authority applicable to PGC or any of its subsidiaries or joint
ventures or any of their respective properties or assets, or (iii)
subject to obtaining PGC Required Consents, any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument, obligation or agreement of any
kind to which PGC or any of its subsidiaries or joint ventures is now
a party or by which any of them or any of their respective properties
or assets may be bound or affected, excluding from the foregoing
clauses (ii) and (iii) such PGC Violations as would not have, in the
aggregate, a PGC Material Adverse Effect.
(c) Statutory Approvals. Except for (i) the OPUC
Approval, (ii) a declaration of effectiveness by the SEC of the
Post-Effective Amendment, (iii) the matters set forth in items (5) and
(6) on Section 5.4(c) of the PGC Disclosure Schedule, (iv) those
declarations, filings, registrations, notices, authorizations,
consents, findings or approvals that have already been made and (v)
any supplemental filings relating to any of the foregoing required by
the execution of the First Amendment or the transactions contemplated
thereby, there are no PGC Required Statutory Approvals in connection
with the execution and delivery of the First Amendment by PGC or the
consummation by PGC of the transactions contemplated by this
Agreement, the failure to obtain, make or give which would have, in
the aggregate, a PGC Material Adverse Effect.
Section 5.19 Vote Required for First Amendment. The
approval of the First Amendment and the PGC Merger by the holders of a
majority of the shares of outstanding PGC Common Stock (the
"Supplemental PGC Shareholders' Approval") is the only vote of the
holders of any class or series of the capital stock of PGC required to
approve this Agreement (as amended by the First Amendment), the PGC
Merger and the other transactions contemplated by this Agreement.
Section 5.20 Supplemental Opinion of Financial Advisor.
PGC has received the opinion of Goldman, Sachs & Co. dated the date of
the First Amendment to the effect that,
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as of such date, the consideration to be received by the holders of
PGC Common Stock in the PGC Merger pursuant to this Agreement (as
amended by the First Amendment) is fair from a financial point of view
to the holders of PGC Common Stock.
8. Section 7.3(a) of the Agreement is hereby amended to read in
its entirety as follows:
(a) Regulatory Plans. Set forth on Appendix I
are the terms of the revised regulatory plan to be submitted
for approval by the OPUC (the "Revised OPUC Plan"). To the
extent that the regulatory plans set forth in Schedule 7.3(a)
(the "Regulatory Plans") relate to the OPUC or the state
regulatory approval process, such regulatory plans (and
Schedule 7.3(a)) are hereby amended to reflect the Revised
OPUC Plan. The approval of the OPUC contemplated by the
Revised OPUC Plan is referred to herein as the "OPUC
Approval." PGC and Enron shall cooperate in good faith,
consult with each other and obtain each other's consent and
agreement (which shall not be unreasonably withheld) on all
components of, significant steps toward the achievement of the
Revised OPUC Plan and obtaining the OPUC Approval and with
respect to significant filings, communications, agreements,
arrangements or consents, written or oral, formal or informal,
with the OPUC and/or any intervenor or representative thereof.
9. Article VII of the Agreement is hereby amended by adding
Section 7.20, which shall read as follows:
Section 7.20 PGC Supplemental Proxy Statement and
Registration Statement.
(a) Preparation and Filing. As promptly as reasonably
practicable after the date of the First Amendment, the parties shall
prepare and file with the SEC a post-effective amendment to the
Registration Statement and a Proxy Statement (the "Supplemental Proxy
Statement") in connection with the Supplemental PGC Shareholders'
Meeting. The parties shall take such actions as may be reasonably
required to cause the post-effective amendment to the Registration
Statement (the "Post-Effective Amendment") to be declared effective
under the Securities Act as promptly as practicable after such filing.
The parties shall also take such action as may be reasonably required
to cause the shares of Company Common Stock and Company Preferred
Stock issuable in connection with the Mergers to be registered under
or to obtain an exemption from registration under applicable state
"blue sky" or securities laws, and to promptly make any filings
required in connection with the First Amendment and the transactions
contemplated thereby; provided, however, that none of the Company, PGC
or Enron shall be required to register or qualify as a foreign
corporation or to take any other action that would subject it to
general service of process in any jurisdiction in which the Company
will not, following the Effective Time, be so subject. Each of the
parties shall furnish all information concerning itself that is
required or customary for inclusion in the Supplemental Proxy
Statement and/or the Post-Effective Amendment. If, at any time prior
to the Effective Time, Enron discovers any event or circumstance
relating
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to Enron or any of its subsidiaries, or its or their respective
officers or directors, that should be set forth in an amendment to the
Post-Effective Amendment or a supplement to the Supplemental Proxy
Statement, Enron shall promptly inform PGC. If, at any time prior to
the Effective Time, PGC discovers any event or circumstance relating
to PGC or any of its subsidiaries, or its or their respective officers
or directors that should be set forth in an amendment to the
Post-Effective Amendment or a supplement to the Supplemental Proxy
Statement, PGC shall promptly inform Enron. No representation,
covenant or agreement contained in this Agreement is made by any party
hereto with respect to information supplied by any other party hereto
for inclusion in the Post-Effective Amendment or the Supplemental
Proxy Statement. The Post-Effective Amendment and the Supplemental
Proxy Statement shall comply as to form in all material respects with
the Securities Act and the rules and regulations thereunder.
(b) Letter of Enron's Accountants. Following receipt by
Arthur Andersen LLP, Enron's independent auditors, of an appropriate
request from PGC pursuant to SAS No. 72, Enron shall use best efforts
to cause to be delivered to the Company and PGC a letter of Arthur
Andersen LLP, dated a date within two business days before the
effective date of the Post-Effective Amendment and addressed to the
Company and PGC, in form and substance reasonably satisfactory to the
Company and PGC and customary in scope and substance for "cold
comfort" letters delivered by independent public accountants in
connection with registration statements and proxy statements similar
to the Post-Effective Amendment and the Supplemental Proxy Statement.
(c) Letter of PGC's Accountants. Following receipt by
Arthur Andersen LLP, PGC's independent auditors, of an appropriate
request from Enron pursuant to SAS No. 72, PGC shall use best efforts
to cause to be delivered to the Company and Enron a letter of Arthur
Andersen LLP dated a date within two business days before the
effective date of the Post-Effective Amendment and addressed to the
Company and Enron, in form and substance satisfactory to the Company
and Enron and customary in scope and substance for "cold comfort"
letters delivered by independent public accountants in connection with
registration statements and proxy statements similar to the
Post-Effective Amendment and the Supplemental Proxy Statement.
(d) Fairness Opinion. Prior to mailing the Supplemental
Proxy Statement to the shareholders of PGC, PGC shall have received an
opinion from Goldman, Sachs & Co., dated the date of the Supplemental
Proxy Statement, to the effect that, as of the date thereof, the
consideration to be received by holders of PGC Common Stock pursuant
to the PGC Merger is fair to such holders from a financial point of
view.
(e) Supplemental PGC Shareholder Approval. PGC shall, as
promptly as reasonably practicable after the date of the First
Amendment (i) take all steps reasonably necessary to call, give notice
of, convene and hold a meeting of its shareholders, which may be
either a special meeting or annual meeting (the "Supplemental PGC
Shareholders"
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Meeting"), for the purpose of securing the Supplemental PGC
Shareholders' Approval, (ii) distribute to its shareholders the
Supplemental Proxy Statement in accordance with applicable federal and
state law and with its articles of incorporation and bylaws, which
Supplemental Proxy Statement shall contain the recommendation of the
Board of Directors of PGC that its shareholders approve the PGC
Merger, this Agreement and the transactions contemplated by this
Agreement (as amended by the First Amendment), (iii) use all
reasonable efforts to solicit from its shareholders proxies in favor
of the approval and adoption of the PGC Merger this Agreement (as
amended by the First Amendment) and the transactions contemplated by
this Agreement and to secure the Supplemental PGC Shareholders'
Approval, and (iv) cooperate and consult with Enron with respect to
each of the foregoing matters; provided, that nothing contained in
this Section 7.20(a) shall prohibit the PGC Board of Directors from
failing to make or from withdrawing or modifying its recommendation to
the PGC shareholders hereunder if the Board of Directors of PGC, after
consultation with and based upon the written advice of independent
legal counsel, determines in good faith that such action is necessary
for such Board of Directors to comply with its fiduciary duties to its
shareholders under applicable law.
10. Sections 7.12, 9.1(f) and 9.3 of the Agreement are hereby
amended to (a) replace each reference to "PGC Special Meeting" with
"Supplemental PGC Shareholders' Meeting" and (b) replace each reference to "PGC
Shareholders' Approval" with "Supplemental PGC Shareholders' Approval."
11. Section 7.18 of the Agreement is hereby amended to read in its
entirety as follows:
Section 7.18 Expenses. Subject to Section 7.1 and Section
9.3, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby and thereby shall be paid by
the party incurring such expenses, except that those expenses incurred
in connection with printing the Joint Proxy/Registration Statement,
the Post-Effective Amendment and the Supplemental Proxy Statement, as
well as the filing fee relating thereto, shall be shared equally by
Enron, on the one hand, and PGC, on the other hand.
12. Section 8.1(a) of the Agreement is hereby amended to read in
its entirety as follows:
(a) Shareholder Approvals. The PGC Shareholders'
Approval, the Supplemental PGC Shareholder Approval and the Enron
Shareholders' Approval shall have been obtained.
13. Section 8.1(c) of the Agreement is hereby amended to read in
its entirety as follows:
(c) Registration Statement and Post-Effective Amendment.
The Registration Statement and the Post-Effective Amendment shall
have become effective in accordance with the provisions of the
Securities Act, and no stop order suspending such effectiveness shall
have been issued and remain in effect.
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14. The second sentence of Section 8.1(e) of the Agreement is
hereby amended to read in its entirety as follows:
A "Final Order" means action by the relevant regulatory authority that
has not been reversed, stayed, enjoined, set aside, annulled or
suspended, with respect to which any waiting period prescribed by law
before the transactions contemplated hereby may be consummated has
expired (but without the requirement for expiration of any applicable
appeal period), and as to which all conditions to the consummation of
such transactions prescribed by law, regulation or order have been
satisfied.
15. Section 8.2(f) of the Agreement is hereby amended to read in
its entirety as follows:
(f) Approval of Regulatory Plans. The OPUC shall have
issued a Final Order that approves the Revised OPUC Plan that (i) does
not include the imposition or threatened imposition of any change to
the payment obligations, direct or indirect, of PGC, Enron or any
affiliate of either of them set forth in Sections 2(19) and 2(20) of
Appendix I, (ii) adopts the conditions set forth in Appendix I
(including those set forth in Sections 2(19) and 2(20)), substantially
in the form set forth in Appendix I, and (iii) does not include the
imposition or threatened imposition of any other conditions that are
substantive. For purposes of this Section 8.2(f), the term
"threatened imposition" shall mean a formal or informal expression of
intent by any Governmental Authority. For purposes of this Section
8.2(f), the term "pay" shall include, without limitation, any
imputation of revenues or reduction of revenues, and the term "paying"
and "payment" shall have corresponding meanings. In order for Enron
to assert that the condition set forth in this Section 8.2(f) has not
been satisfied as a result of any action by a Governmental Authority
(including without limitation a Final Order of the OPUC), Enron must
give written notice to PGC to such effect no later than five business
days after the date of the receipt by Enron of notice that such
Governmental Authority has taken such action.
16. Section 9.1(b) of the Agreement is hereby amended to read in
its entirety as follows:
(b) by Enron or PGC, by written notice to the other, if
the Effective Time shall not have occurred on or before the first
anniversary of the date hereof (the "Termination Date"); provided,
however, that either party may extend the Termination Date for an
additional six months (or three months if the condition set forth in
Section 8.2(f) has been satisfied but the condition set forth in
Section 8.1(a) has not been satisfied) from such anniversary if (i)
all the conditions to consummation of the Mergers set forth in Article
VIII hereof have either been satisfied or are then capable of being
satisfied by such date, other than the conditions set forth in
Sections 8.1(a) and/or 8.2(f) and (ii) such party believes that there
is a reasonable probability that such condition will be satisfied by
or before such extended Termination Date; and provided further, that
the right to terminate this Agreement under this Section 9.1(b) shall
not be available to any party whose failure to fulfill any
9
<PAGE> 10
obligation under this Agreement has been the cause of, or resulted in,
the failure of the Effective Time to occur on or before the
termination date;
17. Section 9.1(c) of the Agreement is hereby amended to read in
its entirety as follows:
(c) by Enron or PGC, by written notice to the other
party, if (i) the Enron Shareholders' Approval shall not have been
obtained at the Enron Special Meeting, including any adjournments
thereof, (ii) the PGC Shareholders' Approval shall not have been
obtained at the PGC Special Meeting, including any adjournments
thereof or (iii) the Supplemental PGC Shareholders' Approval shall not
have been obtained at the Supplemental PGC Shareholders' Meeting,
including any adjournments thereof
18. Section 9.1 of the Agreement is hereby amended by adding a new
paragraph (n), which shall read as follows:
(n) by Enron, by written notice to PGC, if the OPUC
issues an order (regardless of whether such order has become a Final
Order) that disapproves the Mergers or that approves the Mergers in a
manner that does not satisfy the condition set forth in Section
8.2(f).
19. Except as expressly set forth herein, the terms and provisions
of the Agreement are hereby ratified and confirmed.
20. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
10
<PAGE> 11
IN WITNESS WHEREOF, Enron, PGC and the Company have
caused this Amendment to be signed by their respective officers
thereunto duly authorized as of the date first above written.
ENRON CORP.
By: /s/ J. CLIFFORD BAXTER
--------------------------------------------
J. Clifford Baxter
Senior Vice President, Corporate Development
PORTLAND GENERAL CORPORATION
By: /s/ JOSEPH M. HIRKO
--------------------------------------------
Joseph M. Hirko
Senior Vice President and
Chief Financial Officer
ENRON OREGON CORP.
By: /s/ EDMUND P. SEGNER, III
--------------------------------------------
Edmund P. Segner, III
President
11
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