AMENDMENT NO. 2
TO AGREEMENT AND PLAN OF
REORGANIZATION AND MERGER
BY AND AMONG U.S. ENERGY SYSTEMS, INC.,
USE ACQUISITION CORP. AND
▇▇▇▇▇▇ ALTERNATIVE POWER CORPORATION
This Amendment No. 2 to Agreement and Plan of Reorganization and Merger
(the "Amendment") is made as of the 19th day of December, 2000 by and among U.S.
Energy Systems, Inc. ("Parent"), USE Acquisition Corp. ("Merger Sub"), and
▇▇▇▇▇▇ 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 and (ii) that certain Amendment No. 1 to the Agreement dated
as of the 11th 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. The last unlettered paragraph of Section 8.01 of the Merger Agreement is
hereby amended by deleting the existing paragraph in its entirety and inserting
in its place the following paragraph:
This Agreement will be terminated and be void and of no effect in the
event ▇▇▇▇▇▇▇ does not consent in writing on or before 5:00 p.m., Eastern
Standard time on December 22, 2000, to the Company's entering into the
Merger Agreement and the Exhibits hereto to which the Company is a party
and which are to be entered into as of the date hereof; provided, however,
that the terms of the consent are subject to the prior approval of Parent
and Merger Sub.
2. 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.
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and
Chief Operating Officer
USE ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ ALTERNATIVE POWER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President