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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
EL PASO NATURAL GAS COMPANY,
EL PASO ENERGY CORPORATION
AND
EL PASO ENERGY MERGER COMPANY
DATED AS OF JULY 16, 1998
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TABLE OF CONTENTS
ARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.3 Restated Certificate of Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.4 By-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.5 Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.6 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.7 Additional Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.8 Conversion of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.9 Preferred Share Purchase Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.10 No Surrender of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.1 Company Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.2 Assumption of Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.3 Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III CONDITIONS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1 Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.1 Election of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.2 Listing of Holding Company Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.3 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.4 Change in Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.5 Contribution of Treasury Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V TERMINATION AND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.2 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 6.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 6.2 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 6.3 Entire Merger Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement"), dated as
of July 16, 1998, is among El Paso Natural Gas Company, a Delaware corporation
(the "Company"), El Paso Energy Corporation, a Delaware corporation ("Holding")
and a direct, wholly owned subsidiary of the Company, and El Paso Energy Merger
Company, a Delaware corporation ("Merger Sub") and a direct, wholly owned
subsidiary of Holding.
R E C I T A L S:
WHEREAS, the Company's authorized capital stock consists of (i)
275,000,000 shares of common stock, par value $3.00 per share (the "Company
Common Stock"), of which, as of June 30, 1998, 121,257,707 shares were issued
and outstanding (including 1,360,000 shares held in the Company's Benefits
Protection Trust (the "Trust")) and 2,619,724 shares held in Company's
treasury; and (ii) 25,000,000 shares of preferred stock, par value $0.01 per
share, none of which is currently outstanding but of which 1,375,000 shares
have been designated as the El Paso Natural Gas Company Series A Junior
Participating Preferred Stock and an additional 1,375,000 shares are to be
designated prior to the Merger as additional shares of such Series A Junior
Participating Preferred Stock (collectively, the "Company Series A Preferred
Stock"); and
WHEREAS, as of the date hereof, Holding's authorized capital stock
consists of (i) 1,000 shares of common stock, par value $1.00 per share, of
which 1,000 shares are issued and outstanding and owned by the Company and no
shares are held in treasury, and (ii) no shares of preferred stock are
authorized; but prior to the Merger, Holding's authorized capital stock will
consist of (i) 275,000,000 shares of common stock, par value $3.00 per share
(the "Holding Common Stock"), of which 1,000 shares will be issued and
outstanding and owned by the Company and no shares will be held in treasury,
and (ii) 25,000,000 shares of preferred stock, par value $0.01 per share, none
of which is currently outstanding but of which 2,750,000 shares will be
designated as the El Paso Energy Corporation Series A Junior Participating
Preferred Stock (the "Holding Series A Preferred Stock") pursuant to a
Certificate of Designation filed with the Delaware Secretary of State; and
WHEREAS, as of the date hereof, Merger Sub has an authorized capital
stock consisting of 1,000 shares of common stock, par value $1.00 per share
(the "Merger Sub Common Stock"), of which 1,000 shares are issued and
outstanding on the date hereof and owned by Holding; and
WHEREAS, the designations, rights and preferences, and the
qualifications, limitations and restrictions thereof, of the Holding Series A
Preferred Stock and the Holding Common Stock are the same as those of the
Company Series A Preferred Stock and the Company Common Stock respectively; and
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WHEREAS, the Restated Certificate of Incorporation of Holding (the
"Holding Charter") and the By-laws of Holding (the "Holding By-laws") in effect
immediately after the Effective Date (as hereinafter defined) will contain
provisions identical to the Restated Certificate of Incorporation of the
Company (the "Company Charter") and By-laws of the Company (the "Company
By-laws") in effect immediately before the Effective Date (other than with
respect to matters excepted by Section 251(g) of the General Corporation Law of
the State of Delaware (the "DGCL")); and
WHEREAS, the directors and officers of the Company immediately prior
to the Merger (as hereinafter defined) will be the directors and officers of
Holding as of the Effective Date; and
WHEREAS, Holding and Merger Sub are newly formed corporations
organized for the purpose of participating in the transactions herein
contemplated; and
WHEREAS, the Company desires to create a new holding company structure
by merging Merger Sub with and into the Company, with the Company continuing as
the surviving corporation of such merger, and each outstanding share (or any
fraction thereof) of Company Common Stock being converted in such merger into a
like number of shares of Holding Common Stock, all in accordance with the terms
of this Merger Agreement (the "Merger"); and
WHEREAS, the Boards of Directors of Holding, Merger Sub and the
Company and Holding, in its capacity as the sole stockholder of Merger Sub,
have approved this Merger Agreement and the merger of Merger Sub with and into
the Company upon the terms and subject to the conditions set forth in this
Merger Agreement; and
WHEREAS, pursuant to authority granted by the Board of Directors of
the Company, the Company will, immediately prior to the Effective Date (defined
below), contribute to the capital of Holding all of the shares of Company
Common Stock then held by the Company in its treasury.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Merger Agreement, and intending to be legally
bound hereby, the Company, Holding and Merger Sub hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. In accordance with Section 251(g) of the
DGCL and subject to and upon the terms and conditions of this Merger Agreement,
Merger Sub shall, at the Effective Date (defined below), be merged with and
into the Company, the separate corporate existence of Merger Sub shall cease
and the Company shall continue as the surviving corporation of the Merger (the
"Surviving Corporation"). At the Effective Date, the effect of the Merger
shall be as provided in Section 259 of the DGCL.
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SECTION 1.2 EFFECTIVE DATE. The parties shall file this Merger
Agreement, executed in accordance with the relevant provisions of the DGCL,
with the Secretary of State of the State of Delaware and shall make all other
filings or recordings required under the DGCL to effectuate the Merger. The
Merger shall become effective as of 12:01 a.m. Eastern Daylight Time on August
1, 1998 (such date and time being referred to herein as the "Effective Date").
SECTION 1.3 RESTATED CERTIFICATE OF INCORPORATION. From and after
the Effective Date, the Company's Charter, as in effect immediately prior to
the Effective Date, shall be the restated certificate of incorporation of the
Surviving Corporation (the "Surviving Corporation's Charter") until thereafter
amended as provided by law; provided, however, that, from and after the
Effective Date:
(a) Article 4 thereof shall be amended so as to read in its
entirety as follows:
"The total number of authorized shares of all classes of stock
of this corporation shall consist of 1,000 shares of common stock
having a par value of $1.00 per share and 1,000,000 shares of
preferred stock having a par value of $0.01 per share. Authority is
hereby expressly granted to the Board of Directors to fix by
resolution or resolutions any of the designations and the powers,
preferences and rights, and the qualifications, limitations or
restrictions which are permitted by the General Corporation Law of the
State of Delaware in respect of any class or classes of stock or any
series of any class of stock of the corporation. No shares of the
previously designated Series A Junior Participating Preferred Stock
having been issued, such series is hereby terminated and all matters
set forth in this Restated Certificate of Incorporation with respect
to such series are hereby eliminated from this Restated Certificate of
Incorporation.
(b) A new Article 13 shall be added thereto which shall be and
read in its entirety as follows:
"ARTICLE 13. VOTE OF STOCKHOLDERS OF EL PASO ENERGY CORPORATION
REQUIRED TO APPROVE CERTAIN ACTIONS.
Any act or transaction by or involving this corporation that requires
for its adoption under the General Corporation Law of the State of
Delaware or this Restated Certificate of Incorporation the approval of
the stockholders of this corporation shall, pursuant to Section 251(g)
of the General Corporation Law of the State of Delaware, require, in
addition, the approval of the stockholders of El Paso Energy
Corporation, a Delaware corporation, or any successor thereto by
merger, by the same vote that is required by the General Corporation
Law of the State of Delaware and/or the Restated Certificate of
Incorporation of this corporation."
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SECTION 1.4 BY-LAWS. From and after the Effective Date, the Company
By-laws, as in effect immediately prior to the Effective Date, shall constitute
the By-laws of the Surviving Corporation until thereafter amended as provided
therein or by applicable law.
SECTION 1.5 DIRECTORS. The directors of Merger Sub in office
immediately prior to the Effective Date shall be the initial directors of the
Surviving Corporation and will hold office from the Effective Date until their
successors are duly elected or appointed and qualified in the manner provided
in the Surviving Corporation's Charter and By-laws, or as otherwise provided by
law.
SECTION 1.6 OFFICERS. The officers of Merger Sub in office
immediately prior to the Effective Date shall be the officers of the Surviving
Corporation until the earlier of their resignation or removal or until their
successors are duly elected or appointed and qualified in the manner provided
in the Surviving Corporation's Charter and By-laws, or as otherwise provided by
law.
SECTION 1.7 ADDITIONAL ACTIONS. Subject to the terms of this Merger
Agreement, the parties hereto shall take all such reasonable and lawful action
as may be necessary or appropriate in order to effectuate the Merger, which
shall include executing and delivering an assignment and assumption agreement
(the "Assumption Agreement"), effective upon consummation of the Merger, in
such form as the Company and Holding determine to be appropriate to evidence
the assignment to and assumption by Holding of such rights, interests,
obligations and liabilities as the Company and Holding determine to be
appropriate. If, at any time after the Effective Date, the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either of Merger Sub or the Company acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with,
the Merger or otherwise to carry out this Merger Agreement, the officers and
directors of the Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of each of Merger Sub and the Company, all
such deeds, bills of sale, assignments and assurances and to take and do, in
the name and on behalf of each of Merger Sub and the Company or otherwise, all
such other actions and things as may be necessary or desirable to vest, perfect
or confirm any and all right, title and interest in, to and under such rights,
properties or assets in the Surviving Corporation or otherwise to carry out
this Merger Agreement.
SECTION 1.8 CONVERSION OF SECURITIES. At the Effective Date, by
virtue of the Merger and without any action on the part of Holding, Merger Sub,
the Company or the holder of any of the following securities:
(a) Conversion of Company Common Stock. Each share of Company
Common Stock (or fraction of a share of Company Common Stock), including the
1,360,000 shares of
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Company Common Stock held in the Trust, issued and outstanding immediately
prior to the Effective Date shall be converted into and thereafter represent
one duly issued, fully paid and nonassessable share (or equal fraction of a
share) of Holding Common Stock.
(b) Conversion of Company Common Stock in Treasury. Each share of
Company Common Stock issued but held by the Company or Holding in its treasury
immediately prior to the Effective Date shall be converted into and thereafter
represent one duly issued, fully paid and nonassessable share of Holding Common
Stock held in such entity's treasury immediately after the Effective Date.
(c) Conversion of Capital Stock of Merger Sub. Each share of
Merger Sub Common Stock issued and outstanding immediately prior to the
Effective Date shall be converted into and thereafter represent one duly
issued, fully paid and nonassessable share of common stock, par value $1.00 per
share, of the Surviving Corporation.
(d) Cancellation of Capital Stock of Holding. Each share of
Holding Common Stock that is owned by the Company immediately prior to the
Merger and any preferred share purchase rights of Holding issued pursuant to
the Holding Rights Plan (as defined herein) and associated with any such share
shall automatically be cancelled and retired and shall cease to exist.
(e) Rights of Certificate Holders. From and after the Effective
Date, holders of certificates formerly evidencing Company Common Stock shall
cease to have any rights as stockholders of the Company, except as provided by
law; provided, however, that such holders shall have the rights set forth in
Section 1.10 herein.
SECTION 1.9 PREFERRED SHARE PURCHASE RIGHTS.
(a) In accordance with Section 24.1 of that certain Amended and
Restated Shareholders Rights Agreement dated as of July 23, 1997, as amended
and in effect on the Effective Date, between the Company and The First National
Bank of Boston, as Rights Agent (the "Company Rights Plan"), as of the
Effective Date, each one-half outstanding preferred stock purchase right of the
Company ("Company Purchase Right") shall be converted into one preferred stock
purchase right of Holding issued under the Holding Rights Plan.
(b) Holding shall, prior to the Effective Date, adopt a preferred
stock purchase rights plan (the "Holding Rights Plan") substantially similar in
form and substance to the Company Rights Plan, with such changes and
adjustments thereto as may be necessary to reflect that, at the Effective Date,
each one-half of a preferred stock purchase right of the Company will be
converted into one preferred share purchase right of Holding issued pursuant to
the Holding Rights Plan, and, in accordance therewith, Holding shall, at the
Effective Date but without duplication of Holding's obligations under the
Holding Rights Plan, issue to each holder of Holding Common Stock issued
pursuant hereto one preferred share purchase right ("Holding
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Purchase Right") for each share of Holding Common Stock issued by it pursuant
to Section 1.8(a) herein.
SECTION 1.10 NO SURRENDER OF CERTIFICATES. Until thereafter
surrendered for transfer or exchange in the ordinary course, each outstanding
stock certificate that, immediately prior to the Effective Date, evidenced
Company Common Stock shall be deemed and treated for all corporate purposes to
evidence the ownership of the number of shares of Holding Common Stock into
which such shares of Company Common Stock were converted pursuant to the
provisions of Sections 1.8 (a) and (b) herein. In addition, immediately after
the Effective Date, each such stock certificate shall evidence a number of
Holding Purchase Rights equal to the number of one-half Company Purchase Rights
evidenced thereby immediately prior to the Effective Date of the Merger (that
is, each one-half Company Purchase Right will be converted into one Holding
Purchase Right).
ARTICLE II
ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER
SECTION 2.1 COMPANY INDEBTEDNESS. As of the Effective Date, Holding,
the Company and the trustee under the Subordinated Indenture dated as of March
1, 1998, between the Company and The Chase Manhattan Bank, as Trustee, shall
execute, acknowledge and deliver a supplemental indenture pursuant to which
Holding shall assume and agree to perform all of the Company's obligations
thereunder and will become the primary obligor with respect to the $334,750,000
principal amount of 4 3/4% subordinated convertible debentures due 2028 of the
Company (the "Debentures") and the Company's guarantee of the 6,500,000 4 3/4%
trust convertible preferred Securities of El Paso Energy Capital Trust I (the
"Trust Preferred Securities"), and the Debentures and the Trust Preferred
Securities will be convertible into Holding Common Stock (rather than Company
Common Stock).
SECTION 2.2 ASSUMPTION OF BENEFIT PLANS. Holding and the Company
hereby agree that they will, as of the Effective Date, execute, acknowledge and
deliver an assumption agreement (which may include an Assignment and Assumption
Agreement) pursuant to which Holding will, from and after the Effective Date,
assume and agree to perform all obligations of the Company pursuant to (a) the
following stock-related plans (as each may have been amended): (i) 1995 Omnibus
Compensation Plan, (ii) 1995 Incentive Compensation Plan, (iii) 1995
Compensation Plan for Non-Employee Directors, (iv) Strategic Stock Plan, (v)
Omnibus Plan for Management Employees, (vi) Retirement Savings Plan, (vii)
Omnibus Compensation Plan, (viii) Restricted Stock Award Plan for Management
Employees, and (ix) Stock Option Plan for Non-Employee Directors; and (b) such
other qualified and non-qualified plans, trust agreements, employment
agreements and other documents and agreements as the Company and Holding
determine to be appropriate (collectively the "Benefit Plans").
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SECTION 2.3 RESERVATION OF SHARES. On or prior to the Effective
Date, Holding will reserve sufficient authorized but unissued shares of Holding
Common Stock to provide for the issuance of Holding Common Stock upon (a) the
exercise of options or in satisfaction of other benefits payable and
outstanding under the Benefit Plans, and (b) the conversion of the Debentures
and the Trust Preferred Securities, and will reserve the Holding Series A
Preferred Stock sufficient to provide for the issuance thereof upon exercise of
Holding Purchase Rights.
ARTICLE III
CONDITIONS OF MERGER
SECTION 3.1 CONDITIONS PRECEDENT. The obligations of the parties to
this Merger Agreement to consummate the Merger and the transactions
contemplated by this Merger Agreement shall be subject to fulfillment or waiver
by the parties hereto of each of the following conditions:
(a) Prior to the Effective Date, the Holding Common Stock to be
issued pursuant to the Merger shall have been approved for listing, upon
official notice of issuance, by the New York Stock Exchange (the "NYSE").
(b) Holding shall have adopted the Holding Rights Plan and, prior
to the Effective Date, the Holding Purchase Rights to be issued in conjunction
with the issuance of Holding Common Stock pursuant to the Merger shall have
been approved for listing, upon official notice of issuance, by the NYSE.
(c) The Company, Holding and the Trustee shall have executed and
delivered the Supplemental Indenture contemplated by Article II herein, subject
only to the occurrence of the Effective Date.
(d) Prior to the Effective Date, Xxxxxxx & Xxxxx, L.L.P., counsel
to the Company, shall have received on behalf of the Company an interpretive or
no-action letter from the staff of the Securities and Exchange Commission, in
form and substance satisfactory to the Company, in response to that certain
request therefor dated May 18, 1998, from such firm.
(e) Prior to the Effective Date, White & Case, L.L.P., special tax
counsel to the Company, shall have rendered an opinion to the Board of
Directors of the Company, in form and substance satisfactory to the Company, to
the effect that for federal income tax purposes (i) the Merger will constitute
a tax-free reorganization under Section 368(a) of the Code; (ii) no gain or
loss will be recognized by the stockholders of the Company upon receipt of the
Holding Common Stock and Holding Purchase Rights in exchange for their shares
of Company Common Stock and Company Purchase Rights pursuant to the Merger;
(iii) the tax basis of the shares of Holding Common Stock to be received by the
Company's stockholders pursuant to the Merger Agreement will be the same as
their tax basis in the Company Common Stock converted or
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exchanged therefor; and (iv) the holding period of Holding Common Stock to be
received by the Company's stockholders pursuant to the Merger Agreement will
include the holding period of the Company Common Stock converted or exchanged
therefor, provided that such Company Common Stock is held as a capital asset in
the hands of such stockholder at the time of the Merger.
(f) Prior to the Effective Date, no order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits or
makes illegal the consummation of the Merger or the transactions contemplated
hereby.
(g) Prior to the Effective Date, the Company shall file with the
office of the Delaware Secretary of State a Restated Certificate of
Incorporation, among other things, to increase Holding's authorized capital
stock to (i) 275,000,000 shares of common stock, par value $3.00 per share and
(ii) 25,000,000 shares of preferred stock, par value $0.01 per share
(h) Prior to the Effective Date, the Company shall file with the
office of the Delaware Secretary of State a Certificate of Increase to increase
to a total of 2,750,000 the number of shares of Company Series A Preferred
Stock.
ARTICLE IV
COVENANTS
SECTION 4.1 ELECTION OF DIRECTORS. Effective immediately prior to
the Effective Date, the Company, in its capacity as the sole stockholder of
Holding, will cause the Board of Directors of Holding to effect, and Holding
hereby agrees to effect, such amendments to the Holding By-laws as are
necessary to increase the number of directors of Holding to equal the number of
directors of the Company and the Company, in its capacity as the sole
stockholder of Holding, will elect (or the Board of Directors of Holding will
elect to fill vacancies on the board) each person who is then a member of the
board of directors of the Company as a director of Holding (and to be the only
directors of Holding), each of whom shall serve until the next annual meeting
of shareholders of Holding and until his successor shall have been elected and
qualified.
SECTION 4.2 LISTING OF HOLDING COMPANY COMMON STOCK. Holding will
use its best efforts to obtain, at or before the Effective Date, authorization
to list, upon official notice of issuance, on the NYSE Holding Common Stock
issuable pursuant to the Merger and Holding Purchase Rights issuable in
conjunction therewith.
SECTION 4.3 EMPLOYEE BENEFIT PLANS. The Company and Holding will
take or cause to be taken all actions necessary or desirable in order for
Holding to assume the Benefit Plans and to assume (or become a participating
employer in) each other existing employee benefit plan, trust and agreement of
the Company, with or without amendments, or to adopt comparable plans,
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all to the extent deemed appropriate by the Company and Holding and permitted
under applicable law.
SECTION 4.4 CHANGE IN CAPITALIZATION. Prior to the Effective Date,
Holding and the Company agree to take all action necessary or desirable under
the DGCL to designate 2,750,000 shares of Preferred Stock of Holding as Series
A Junior Participating Preferred Stock having terms and provisions
substantially similar to those of the Company's Series A Junior Participating
Preferred Stock.
SECTION 4.5 CONTRIBUTION OF TREASURY STOCK. Immediately prior to the
Effective Date, the Company will contribute to the capital of Holding all the
Company Common Stock then held in the treasury of the Company.
ARTICLE V
TERMINATION AND AMENDMENT
SECTION 5.1 TERMINATION. This Merger Agreement may be terminated and
the Merger contemplated hereby may be abandoned at any time prior to the
Effective Date by action of the Board of Directors of the Company, Holding or
Merger Sub if it is determined that for any reason the completion of the
transactions provided for herein would be inadvisable or not in the best
interest of such corporation or its stockholders. In the event of such
termination and abandonment, this Merger Agreement shall become void and
neither the Company, Holding or Merger Sub nor their respective stockholders,
directors or officers shall have any liability with respect to such termination
and abandonment.
SECTION 5.2 AMENDMENT. This Merger Agreement may be supplemented,
amended or modified by the mutual consent of the Boards of Directors of the
parties to this Merger Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 GOVERNING LAW. This Merger Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws.
SECTION 6.2 COUNTERPARTS. This Merger Agreement may be executed in
one or more counterparts, each of which when executed shall be deemed to be an
original but all of which shall constitute one and the same agreement.
SECTION 6.3 ENTIRE MERGER AGREEMENT. This Merger Agreement,
including the documents and instruments referred to herein, constitutes the
entire agreement and supersedes all
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other prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
IN WITNESS WHEREOF, Holding, Merger Sub and the Company have caused
this Merger Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
EL PASO NATURAL GAS COMPANY
By: /s/ H. Xxxxx Xxxxxx
-----------------------------------
H. Xxxxx Xxxxxx
Executive Vice President
and Chief Financial Officer
EL PASO ENERGY CORPORATION
By: /s/ H. Xxxxx Xxxxxx
-----------------------------------
H. Xxxxx Xxxxxx
Executive Vice President
and Chief Financial Officer
EL PASO ENERGY MERGER COMPANY
By: /s/ H. Xxxxx Xxxxxx
-----------------------------------
H. Xxxxx Xxxxxx
Executive Vice President
and Chief Financial Officer
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CERTIFICATE
PURSUANT TO SECTION 251(g) OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
AGREEMENT AND PLAN OF MERGER
DATED AS OF JULY 16, 1998
MERGING
EL PASO ENERGY MERGER COMPANY
WITH AND INTO EL PASO NATURAL GAS COMPANY
--------------------------
The attached Agreement and Plan of Merger shall be effective at 12:01 a.m.,
Eastern Daylight Time, on August 1, 1998.
--------------------------
El Paso Natural Gas Company
I, Xxxxx X. Xxxxxxx, Corporate Secretary of El Paso Natural Gas
Company, a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), hereby certify that the Merger Agreement and Plan
of Merger to which this Certificate is attached, after having been first duly
signed on behalf of said corporation and having been duly signed on behalf of
El Paso Energy Merger Company, a Delaware corporation, and El Paso Energy
Corporation, a Delaware corporation, was duly adopted pursuant to Subsection
(g) of Section 251 of the Delaware General Corporation Law and the conditions
specified in the first sentence of such Subsection have been satisfied; and
that the Merger Agreement and Plan of Merger was thereby adopted by action of
the Board of Directors of El Paso Natural Gas Company, and is the duly adopted
agreement and act of said corporation.
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Corporate Secretary
El Paso Natural Gas Company
14
El Paso Energy Merger Company
I, Xxxxx X. Xxxxxxx, Corporate Secretary of El Paso Energy Merger
Company, a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), hereby certify that the Merger Agreement and Plan
of Merger to which this Certificate is attached, after having been first duly
signed on behalf of said corporation and having been duly signed on behalf of
El Paso Natural Gas Company, a Delaware corporation, and El Paso Energy
Corporation, a Delaware corporation, was duly adopted pursuant to Section 251
of the Delaware General Corporation Law and the conditions specified in the
first sentence of such Subsection have been satisfied; and that the Merger
Agreement and Plan of Merger was thereby adopted by action of the Board of
Directors of El Paso Energy Merger Company, approved by vote of the sole
stockholder of El Paso Energy Merger Company, and is the duly adopted agreement
and act of said corporation.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Corporate Secretary
El Paso Energy Merger Company
