**Exhibit 2.b**

 

**EXECUTION COPY**

 

 

**AMENDMENT NO. 1**

**TO THE**

**AGREEMENT AND PLAN OF MERGER**

 

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This AMENDMENTNO. 1 (this “Amendment”), dated as of July 11, 2005, to the Agreementand Plan of Merger, dated as of May 8, 2005 (the “Merger Agreement”), byand among Duke Energy Corporation, a NorthCarolina corporation (“Duke”), Cinergy Corp., a Delaware corporation (“Cinergy”),Duke Energy Holding Corp., a Delaware corporation (formerly Deer Holding Corp.)(the “Company”), Deer Acquisition Corp., a North Carolina corporation (“MergerSub A”), and Cougar Acquisition Corp., a Delaware corporation (“MergerSub B”).

 

WHEREAS,Section 7.03 of the Merger Agreement provides for the amendment of the MergerAgreement in accordance with the terms set forth therein; and

 

WHEREAS, theparties hereto desire to amend the Merger Agreement as set forth below;

 

NOW,THEREFORE, in consideration of the foregoing and the mutual covenants andagreements set forth herein and for good and valuable consideration, thereceipt and adequacy of which is hereby acknowledged, and intending to belegally bound hereby, the parties hereto do hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.1             Definitions;References.  Unless otherwisespecifically defined herein, each term used herein shall have the meaningassigned to such term in the Merger Agreement. Each reference to “hereof,” “herein,” “hereunder,” “hereby” and “thisAgreement” shall, from and after the date hereof, refer to the Merger Agreementas amended by this Amendment.

 

ARTICLE II

AMENDMENTS TO MERGER AGREEMENT

 

Section 2.1             Amendmentsto Merger Agreement.  The MergerAgreement shall be amended as follows:

 

(a)           Section 2.02(b)of the Agreement is hereby amended by inserting the following sentence as thefinal sentence of the section:

 

“Notwithstandinganything to the contrary hereinbefore, subject to applicable law, the partiesintend that the Company will implement a direct registration system at Closing,and if such direct registration system

 

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is implementedby the Company at such time, all shares of Company Common Stock shall be inuncertificated book-entry form unless a physical certificate is requested bysuch holder.”

 

(b)           Section 2.02(e)(i)of the Agreement is hereby amended by inserting the following sentences as thefinal sentences of the section:

 

“Notwithstandingthe foregoing, Duke and Cinergy shall use reasonable best efforts to cause theDuke Energy InvestorDirect Choice Plan (the “Duke DRIP”) and the CinergyCorp. Direct Stock Purchase and Dividend Reinvestment Plan (the “CinergyDRIP”) to be rolled over into a dividend reinvestment plan to beestablished and implemented by the Company on or prior to the ClosingDate.  In connection with such roll-over,fractional shares of Company Common Stock will be issued to the participants ineach of the Duke DRIP and the Cinergy DRIP in accordance with Section 2.01.”

 

(c)           Section 2.02(l)of the Agreement is hereby amending by inserting the following to the end ofsuch section:

 

“provided,however, that Duke and Cinergy shall use reasonable best efforts so thatuncertificated shares of Duke Common Stock held in the Duke DRIP anduncertificated shares of Cinergy Common Stock held in the Cinergy DRIP shall beexchanged for uncertificated shares of Company Common Stock in accordance withSection 2.01 and shall be held in a dividend reinvestment plan to beestablished and implemented by the Company on or prior to the Closing Date, inaccordance with Section 2.02(e)(i).”

 

ARTICLE III

MISCELLANEOUS

 

Section 3.1             NoFurther Amendment.  Except asexpressly amended hereby, the Merger Agreement is in all respects ratified andconfirmed and all the terms, conditions, and provisions thereof shall remain infull force and effect.  This Amendment islimited precisely as written and shall not be deemed to be an amendment to anyother term or condition of the Merger Agreement or any of the documentsreferred to therein.

 

Section 3.2             Effectof Amendment.  This Amendment shallform a part of the Merger Agreement for all purposes, and each party theretoand hereto shall be bound hereby.  Fromand after the execution of this Amendment by the parties hereto, any referenceto the Merger Agreement shall be deemed a reference to the Merger Agreement asamended hereby.

 

Section 3.3             GoverningLaw.  This Amendment shall begoverned by, and construed in accordance with, the laws of the State of NewYork, regardless of the laws that might otherwise govern under applicableprinciples of conflict of laws.

 

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Section 3.4             SeparabilityClause.  In case any one or more ofthe provisions contained in this Amendment should be invalid, illegal orunenforceable in any respect, the validity, legality and enforceability of theremaining provisions contained herein shall not in any way be affected,impaired, prejudiced or disturbed thereby.

 

Section 3.5             Counterparts.  This Amendment may be simultaneously executedin several counterparts, and all such counterparts executed and delivered, eachas an original, shall constitute one and the same instrument.

 

Section 3.6             Headings.  The descriptive headings of the severalArticles of this Amendment were formulated, used and inserted in this Amendmentfor convenience only and shall not be deemed to affect the meaning orconstruction of any of the provisions hereof.

 

*[Signature Page Follows]*

 

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IN WITNESSWHEREOF, Duke, Cinergy, the Company, Merger Sub A and Merger Sub Bhave caused this Agreement to be signed by their respective officers thereuntoduly authorized, all as of the date first written above.

 
|   | DUKE ENERGY  CORPORATION   |
|--------|----------------------------|
|   |                       |
|   | By:                        |   |   |
|   |                       | Name: |
|   |                       | Title: |
|   |                       |
|   |                       |
|   | CINERGY  CORP.             |
|   |                       |
|   | By:                        |   |   |
|   |                       | Name: |
|   |                       | Title: |
|   |                       |
|   |                       |
|   | DUKE ENERGY  HOLDING CORP. |
|   |                       |
|   | By:                        |   |   |
|   |                       | Name: |
|   |                       | Title: |
|   |                       |
|   |                       |
|   | DEER  ACQUISITION CORP.    |
|   |                       |
|   | By:                        |   |   |
|   |                       | Name: |
|   |                       | Title: |
|   |                       |
|   |                       |
|   | COUGAR  ACQUISITION CORP.  |
|   |                       |
|   | By:                        |   |   |
|   |                       | Name: |
|   |                       | Title: |

 

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