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Exhibit (a)(1)(xi)
AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of December
19, 2000 (the "Amendment"), amends the AGREEMENT AND PLAN OF MERGER, dated as of
October 25, 2000 (the "Merger Agreement"), by and among KENETECH Corporation, a
Delaware corporation (the "Company"), KC Holding Corporation, a Delaware
corporation ("Parent"), and KC Merger Corp., a Delaware corporation and wholly
owned subsidiary of Parent ("Sub"). Capitalized terms used herein and not
otherwise defined herein have the meanings ascribed to them in the Merger
Agreement.
WHEREAS, the Company, Parent and Sub have entered into the Merger Agreement
and mutually desire to amend the Merger Agreement in accordance with Section 8.4
thereof; and
WHEREAS, the Special Committee, based on, among other things, the fact that
approximately 73.6% of the outstanding Shares (excluding those Shares held by
the Nonvoting Director) were tendered in the Offer, has unanimously recommended
to the Board of Directors that the Company enter into this Amendment;
NOW THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
1. A new Section 1.1(i) is hereby added to the Merger Agreement as
follows:
"Notwithstanding any provision to the contrary contained in Section
1.1 of the Agreement or Exhibit A thereto, Sub agrees to amend the Offer
Documents to (i) extend the expiration date of the Offer to midnight, New
York City time, on December 27, 2000; and (ii) provide that the obligations
of Sub to accept for payment and to pay for Shares validly tendered and not
withdrawn on or prior to the expiration of the Offer shall be subject only
to (A) a minimum of 73% of the outstanding Shares being validly tendered
and not withdrawn prior to the expiration of the Offer (excluding those
Shares held by the Nonvoting Director) (the "Minimum Condition") and (B)
the other conditions set forth in Exhibit A to the Agreement. Not later
than December 21, 2000, the Company and Sub will file an amendment with the
SEC with respect to the Offer Documents (and the Company will file an
amendment to the Schedule 14D-9) which shall contain (including as an
exhibit), or incorporate by reference, a copy of the Amendment No. 1 to
Agreement and Plan of Merger, dated as of December 19, 2000, by and among
the Company, Parent and Sub (the "Amendment"). The Company shall take all
actions reasonably requested by Sub to assist it in disclosing to the
stockholders of the Company the terms and conditions of the Amendment as
and to the extent required by applicable federal securities laws. "
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2. The first paragraph on Exhibit A is hereby amended to read in its
entirety as follows:
"Notwithstanding any other term of the Offer or this Agreement, Sub
shall not be required to accept for payment or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-1 under the Exchange
Act (relating to Sub's obligation to pay for or return tendered Shares
after the termination or withdrawal of the Offer), to pay for any Shares
tendered pursuant to the Offer, unless there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer such number
of Shares as equals the Minimum Condition."
All references to "Minimum Condition" in the Merger Agreement, Exhibit A
thereto and this Amendment shall be deemed to be references to the "Minimum
Condition" as defined in this Amendment.
3. Section 6.6(a) of the Merger Agreement is hereby amended by deleting
the word "and" appearing immediately prior to clause (iv) and adding the
following to the end of that sentence:
"and (v) the taking of all reasonable steps as may be necessary to
enable Parent and Sub to effect the Merger in accordance with Section 253
of the DGCL as soon as reasonably practicable after expiration of the
Offer."
4. Section 8.1 (b) of the Merger Agreement is hereby amended to read in
its entirety as follows:
"(i) if (x) as a result of the failure of any of the Offer Conditions
the Offer shall have terminated or expired in accordance with its terms
without Sub having accepted for payment any Shares pursuant to the Offer or
(y) Sub shall not have accepted for payment any Shares pursuant to the
Offer prior to January 15, 2001; provided, that the right to terminate this
Agreement pursuant to this Section 8.1(b)(i) shall not be available to any
party whose failure to perform any of its obligations under this Agreement
results in the failure of any such condition or if the failure of such
condition results from facts or circumstances that constitute a breach of
any representation or warranty under this Agreement by such party; or"
5. Each of the parties hereto shall execute such documents and take such
further actions as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
6. Except as amended hereby, the Merger Agreement shall remain in full
force and effect in all respects and, except to the extent the context of the
Merger Agreement otherwise requires, each reference in the Merger Agreement to
the Merger Agreement shall be deemed to refer to the Merger Agreement as amended
hereby.
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7. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to be
entirely performed within such state.
8. This Amendment may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Amendment.
IN WITNESS WHEREOF, the Company, Parent and Sub have caused this Amendment
to be signed by their respective officers thereunto duly authorized as of the
date first written above.
KENETECH CORPORATION
By: /s/ Dianne P. Urhausen
Name: Dianne P. Urhausen
Title: Vice President and Secretary
KC HOLDING CORPORATION
By: /s/ Jeffrey W. Ubben
Name: Jeffrey W. Ubben
Title: Secretary and Treasurer
KC MERGER CORP.
By: /s/ Jeffrey W. Ubben
Name: Jeffrey W. Ubben
Title: Secretary and Treasurer
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