EXHIBIT 2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 ("Amendment No. 1"), dated as of April 25, 1999, to
the Agreement and Plan of Merger (the "Merger Agreement"), dated as of December
14, 1998, by and among ONEOK, Inc., an Oklahoma corporation ("Parent"), Oasis
Acquisition Corporation, a California corporation and a wholly owned subsidiary
of Parent ("Merger Sub"), and Southwest Gas Corporation, a California
corporation (the "Company").
WHEREAS, Parent, Merger Sub and the Company have previously executed
and delivered the Merger Agreement; and
WHEREAS, Parent, Merger Sub and the Company desire to amend the
Merger Agreement as set forth herein and pursuant to Section 9.10 thereof;
NOW, THEREFORE, Parent, Merger Sub and the Company agree as follows:
1. Definitions. Capitalized terms used but not expressly defined
herein shall have the meanings accorded such terms in the Merger Agreement.
2. Amendment of Section 2.1(a) of the Merger Agreement. The first
sentence of Section 2.1(a) of the Merger Agreement is hereby amended and
restated to read, in its entirety, as follows:
"Each issued and outstanding share of Company Common Stock
(other than Dissenting Shares (as defined in Section 2.3) covered by
Section 2.3) and each associated stock purchase right (the "Company
Rights") issued pursuant to the Rights Agreement, dated as of March
5, 1996, as amended, between the Company and Xxxxxx Trust Company,
as Rights Agent (the "Company Rights Agreement"), which will be
terminated at the Effective Time of the First Merger (references
herein to Company Common Stock or Shares will be deemed to include
the associated Company Rights), will be converted into the right to
receive $30.00 per share in cash, payable to the holder thereof,
without interest (the "Merger Consideration"), upon surrender of the
certificate formerly representing such share of Company Common Stock
in the manner provided in Section 2.2."
All references to the Merger Consideration in the Merger Agreement or in any
other instrument or agreement contemplated thereby shall be deemed to refer to
the Merger Consideration as such term is defined in the amended and restated
first sentence of Section 2.1(a) set forth above.
3. Amendment of Section 5.1 of the Merger Agreement. Section 5.1
of the Merger Agreement is hereby amended to add the following new Section
5.1(t):
"(t) Southern Union Confidentiality Agreement. The Company
shall take such actions as shall be necessary and appropriate to
enforce all of its rights, powers and remedies under the
Confidentiality Agreement, dated February 21, 1999 (the "Southern
Union Confidentiality Agreement"), between the Company and Southern
Union Company, a Delaware corporation, without amendment or waiver
thereof and shall not agree to any amendment or waiver of or
supplement to any provision of the Confidentiality Agreement."
4. Amendment of Section 5.2(b) of the Merger Agreement. Clause
(y) of Section 5.2(b) of the Merger Agreement is hereby amended and restated to
read, in its entirety, as follows:
"(y) negotiate with a third party with respect to such
Business Combination proposal and, subject to the Company having
paid to Parent the fees described in Section 8.3(a) and having
entered into a definitive agreement with respect to such Business
Combination proposal, terminate this Agreement pursuant to Section
8.1(f)(iii)"
5. Amendment of Section 6.1 of the Merger Agreement. Section 6.1
of the Merger Agreement is hereby amended and restated to read, in its entirety,
as follows:
"Section 6.1 Access to Information. Except as otherwise stated
in this Section 6.1, upon reasonable notice and during normal
business hours, the Company shall, and shall cause its subsidiaries
to, afford to the officers, directors, employees, accountants,
counsel, investment bankers, financial advisors and other
representatives (collectively, "Representatives") of Parent
reasonable access, throughout the period prior to the Effective Time
of the First Merger, to all of its properties, books, contracts,
commitments and records (including, but not limited to, Tax Returns)
in a manner that will not disrupt the operations of the Company or
its relationship with its customers, suppliers or employees. During
such period, the Company shall, and shall cause its subsidiaries to,
furnish promptly to Parent (i) a copy of each report, schedule and
other document filed or received by it or any of its subsidiaries
pursuant to the requirements of federal or state securities laws or
filed with or sent to the SEC, the Department of Justice (the "DOJ")
and the Federal Trade Commission (the "FTC"), and any material
reports, schedules or other documents filed with or sent to the
California Public Utilities Commission, the Arizona Corporations
Commission, the Public Utilities Commission of Nevada, the FERC and
any other federal or state regulatory agency or commission, and (ii)
all information concerning themselves, their subsidiaries,
directors, officers and shareholders and such other matters as may
be reasonably requested by Parent in connection with any filings,
applications or approvals required or contemplated by this
Agreement. Any such investigation by Parent will not affect the
representations or warranties contained in this Agreement. Parent
shall furnish promptly to the Company all information concerning it,
its subsidiaries, directors, officers and shareholders and such
other matters as may be reasonably requested by the Company in
connection with any filings, applications or approvals required or
contemplated by this Agreement.
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Parent shall from time to time at the request of the Company discuss
its financing arrangements for the First Merger with the Company and
shall furnish promptly to the Company such information concerning
its financial condition, together with the final drafts of its
financing arrangements for the First Merger. Parent shall promptly
advise the Company of any reduction in the rating of Parent's
long-term unsecured debt securities by Xxxxx'x Investors Services,
Inc. or Standard & Poor's Ratings Group. Notwithstanding anything in
this Section 6.1 to the contrary, except as required by law
(including, but not limited to, a valid and effective subpoena,
order, civil investigative demand or similar process issued by a
court of competent jurisdiction or by a federal, state or local,
foreign or domestic Governmental Authority), the Company shall not
be obligated to provide books, records or documents that the Company
is legally or by contract obligated to keep confidential. Each party
shall, and shall cause its subsidiaries and Representatives to, hold
in strict confidence all Evaluation Material (as defined in the
Letter Agreement) concerning the other parties furnished to it in
connection with the transactions contemplated by this Agreement in
accordance with the Letter Agreement, dated as of November 20, 1998,
between the Company and Parent, as it may be amended from time to
time (the "Letter Agreement")."
6. Amendment of Section 6.2(a) of the Merger Agreement. The first
sentence of Section 6.2(a) of the Merger Agreement is hereby amended and
restated to read, in its entirety, as follows:
"On or prior to May 14, 1999, the Company will prepare and
file with the SEC the Proxy Statement."
7. Amendment of Section 6.3 of the Merger Agreement. A new
subsection (d) shall be added to Section 6.3 of the Merger Agreement that reads
as follows:
"(d) Ratings. Parent shall cause its long-term unsecured debt
securities to be rated at least Baa3 by Xxxxx'x Investors Services,
Inc. and at least BBB- by Standard & Poor's Ratings Group
immediately prior to the Effective Time of the First Merger."
8. Amendment of Section 9.4 of the Merger Agreement. Section 9.4
of the Merger Agreement is hereby amended to add the following phrase after the
word "principles" in clause (c) thereof:
"except to the extent that certain matters regarding the Mergers are
governed as a matter of California law by the laws of the State of California"
9. Authority.
(a) Each of Parent and Merger Sub has all requisite corporate power
and authority to enter into this Amendment No. 1. The execution and delivery of
this Amendment No. 1 and the
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consummation by each of Parent and Merger Sub of the transactions contemplated
by the Merger Agreement, as amended hereby, have been duly authorized by all
necessary corporate action on the part of Parent and Merger Sub, including,
without limitation, the due approval of this Amendment No. 1 by the Boards of
Directors of Parent and Merger Sub. This Amendment No. 1 has been duly executed
and delivered by each of Parent and Merger Sub and, assuming the due
authorization, execution and delivery hereof by the Company, constitutes the
legal, valid and binding obligation of each of Parent and Merger Sub,
enforceable against each of Parent and Merger Sub in accordance with its terms.
(b) The Company has all requisite corporate power and authority to
enter into this Amendment No. 1. The execution and delivery of this Amendment
No. 1 and the consummation by the Company of the transactions contemplated by
the Merger Agreement, as amended hereby, has been duly authorized by all
necessary corporate action on the part of the Company, including, without
limitation, the due approval of this Amendment No. 1 by the Board of Directors
of the Company. This Amendment No. 1 has been duly executed and delivered by the
Company, and assuming due authorization, execution and delivery hereof by each
of Parent and Merger Sub, constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
10. Governing Law. This Amendment No. 1 shall be governed by, and
construed in accordance with the laws of the State of Oklahoma applicable to
contracts executed in and to be fully performed in such State, without giving
effect to its conflicts of law, rules or principles except to the extent that
certain matters regarding the Mergers are governed as a matter of California law
by the laws of the State of California.
11. Counterparts; Effect. This Amendment No. 1 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.
12. Merger Agreement Confirmed. Except as amended hereby, the
Merger Agreement is ratified and confirmed in all respects. Each reference in
the Merger Agreement or any other related document to the Merger Agreement or
this Amendment No. 1 shall be deemed to be a reference to the Merger Agreement
as amended hereby.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused
this Amendment No. 1 to be signed by their respective officers thereunto duly
authorized as of the date first written above.
ONEOK, INC.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board and Chief
Executive Officer
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Corporate Secretary
OASIS ACQUISITION CORPORATION
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Corporate Secretary
SOUTHWEST GAS CORPORATION
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
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