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EXHIBIT 99.b
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.
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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
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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. 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"
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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 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, ex ecution 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:
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Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board and Chief
Executive Officer
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Corporate Secretary
OASIS ACQUISITION CORPORATION
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Corporate Secretary
SOUTHWEST GAS CORPORATION
By:
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
By:
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Name: Xxxxxx X. Xxxxx
Title: Secretary
