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AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER dated as of
September 17, 2001, is among DOMINION RESOURCES, INC., a Virginia corporation
("Parent"), CONSOLIDATED NATURAL GAS COMPANY, a Delaware corporation and a
direct and wholly owned subsidiary of Parent ("Sub"), and XXXXX XXXXXXX
NATURAL GAS CORP., an Oklahoma corporation (the "Company").
Parent, Sub and the Company have entered into the Agreement and Plan of
Merger dated as of September 9, 2001 (the "Original Agreement") which provides
for the merger of the Company with and into Sub. Section 1.1 of the Original
Agreement provides that Parent may, at its election, substitute for Sub any
direct wholly owned subsidiary of Parent as a constituent corporation to the
Merger. Parent has determined to form a new corporation ("Newco") as a direct
wholly owned subsidiary of Parent and that Newco rather than Sub shall be the
corporation with and into which the Company shall merge. In order to
accomplish the intended purpose of the transaction that the Company be
acquired by Sub, promptly following the Effective Time of the Merger, Parent
will contribute to Sub all of the outstanding capital stock of the Surviving
Corporation. Accordingly, the parties have entered into this Amendment. The
Original Agreement and this Amendment are referred to collectively as the
"Agreement." Capitalized terms used, but not defined, herein have the meaning
given to such terms in the Original Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Article I of the Agreement is hereby deleted and replaced in its
entirety by the following:
ARTICLE I
THE ACQUISITION
SECTION 1.1 FORMATION OF NEWCO; THE MERGER;
CONTRIBUTION TO SUB. Prior to the Effective Time,
Parent shall form a new corporation ("Newco") under
the Delaware General Corporation Law ("DGCL"). Newco
shall be a direct wholly owned subsidiary of Parent
and shall be formed solely for the purpose of engaging
in the transactions contemplated hereby, and will
engage in no other business activities, will not have
any material liabilities and will conduct its
operations only as contemplated under this Agreement.
Parent shall take all necessary action to cause the
Agreement, as amended, to be duly authorized, executed,
delivered and performed by Newco. Subject to the
terms and conditions of this Agreement, at the
Effective Time (as defined in Section 1.3), the Company
shall be merged with and into Newco in accordance with
this Agreement, and the separate corporate existence
of the Company shall thereupon cease. Newco (sometimes
hereinafter referred to as the "Surviving Corporation")
shall be the surviving corporation in the Merger and
shall be a wholly owned subsidiary of Parent. The
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Merger shall have the effects specified in the DGCL
and the Oklahoma General Corporation Act (the "OGCA").
Promptly following the Effective Time Parent shall
contribute to Sub all of the outstanding capital
stock of the Surviving Corporation and the Surviving
Corporation shall become a wholly owned subsidiary
of Sub. At the election of Parent, any direct
wholly owned subsidiary of Parent may be substituted
for Newco as a constituent corporation in the Merger.
In such event, the parties hereto agree to execute
an appropriate amendment to this Agreement in order
to reflect such substitution.
SECTION 1.2 THE CLOSING. Subject to the
terms and conditions of this Agreement, the closing
of the Merger (the "Closing") shall take place
(i) at the offices of McGuireWoods LLP, One Xxxxx
Center, Richmond, Virginia, at 9:00 a.m., local
time, on the first business day immediately
following the day on which the last to be fulfilled
or waived of the conditions set forth in Article VII
(other than those conditions that by their nature
are to be satisfied at the Closing, but subject to
fulfillment or waiver of those conditions) shall be
fulfilled or waived in accordance herewith or
(ii) at such other time, date or place as Parent and
the Company may agree in writing. The date on which
the Closing occurs is hereinafter referred to as the
"Closing Date."
SECTION 1.3 EFFECTIVE TIME. If all the
conditions to the Merger set forth in Article VII
shall have been fulfilled or waived in accordance
herewith and this Agreement shall not have been
terminated as provided in Article VIII, on the
Closing Date, certificates of merger (the
"Certificates of Merger") meeting the requirements
of Section 251 of the DGCL and Section 1082 of the
OGCA shall be properly executed and filed with the
Secretary of State of the State of Delaware and the
Secretary of State of the State of Oklahoma,
respectively. The Merger shall become effective
upon the filing of the Certificates of Merger with
the Secretaries of State of the State of Delaware
and Oklahoma in accordance with the DGCL and the
OGCA, or at such later time that the parties hereto
shall have agreed upon and designated in such filing
as the effective time of the Merger (the "Effective
Time").
SECTION 1.4 CERTIFICATE OF INCORPORATION.
The certificate of incorporation of Newco in effect
immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving
Corporation, until duly amended in accordance with
applicable law.
SECTION 1.5 BYLAWS. The bylaws of Newco in
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effect immediately prior to the Effective Time shall
be the bylaws of the Surviving Corporation, until
duly amended in accordance with applicable law.
SECTION 1.6 BOARD OF DIRECTORS AND OFFICERS.
The board of directors of the Surviving Corporation
shall consist of the board of directors of Newco, as
it existed immediately prior to the Effective Time.
The officers of Newco immediately prior to the
Effective Time shall be the officers of the Surviving
Corporation.
2. Section 2.1 of the Agreement is hereby deleted and replaced in its
entirety by the following:
SECTION 2.1 EFFECT ON CAPITAL STOCK. At the
Effective Time, the Merger shall have the following
effects on the capital stock of the Company and Newco,
without any action on the part of the holder of any
capital stock of the Company or Newco:
(a) Conversion of the Company Shares.
Subject to the provisions of this Section 2.1 and
Section 2.3, each share of common stock, $0.01 par
value, of the Company (each a "Company Share" and
collectively the "Company Shares") issued and
outstanding immediately prior to the Effective Time
(but not including any Dissenting Shares (as
defined below) and any Company Shares that are owned
by (i) Parent, Newco or any other direct or indirect
Subsidiary of Parent or (ii) by the Company (the
"Excluded Company Shares")) shall, by virtue of the
Merger and without any action on the part of the
holder thereof, be converted into the right to receive
(i) $20.00 in cash (the "Cash Consideration"),
(ii) 0.3226 (the "Exchange Ratio") of a Parent Common
Share (the "Share Consideration" and, together with
the Cash Consideration, the "Merger Consideration") and
(iii), in the event the Effective Time does not occur
on or before the record date for the regular quarterly
dividend on Parent Common Shares payable in December
2001 (the "December 2001 Dividend") and/or March 2002
(the "March 2002 Dividend"), as the case may be, and
such failure was not the result of a failure by the
Company to perform or observe in any material respect
any of its obligations under this Agreement, an amount
in cash equal to the December 2001 Dividend and/or the
March 2002 Dividend, as the case may be, payable in
respect of a Parent Common Share multiplied by the
Exchange Ratio (which sum shall be part of the Cash
Consideration). "Parent Common Share" shall mean the
common shares, no par value, of Parent.
(b) Cancellation of Excluded Company
Shares. Each Excluded Company Share issued and outstanding
immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part
of the holder thereof, no longer be outstanding, shall
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be canceled and retired without payment of any
consideration therefor and shall cease to exist.
(c) Newco. At the Effective Time,
each share of common stock, no par value, of Newco
issued and outstanding immediately prior to the
Effective Time shall remain outstanding as shares
of common stock of the Surviving Corporation, and
the Surviving Corporation shall continue as a wholly
owned subsidiary of Parent.
3. The term "Newco" is substituted for the term "Sub" in each place
where such term appears in Sections 7.2(b) and 7.3(b).
4. Section 8.4 of the Agreement is hereby deleted and replaced in its
entirety by the following:
SECTION 8.4. TERMINATION BY PARENT. This
Agreement may be terminated at any time prior to the
Effective Time, by action of the board of directors
of Parent after consultation with its legal advisors,
if:
(i) the board of directors of the
Company shall have withdrawn, modified or
changed, in a manner adverse to Parent, the
board's approval or recommendation of the
Merger or recommended approval of a Company
Acquisition Proposal, or resolved to do any
of the foregoing;
(ii) the Company shall have breached
Section 6.1 in any material respect, and Parent
shall have been adversely affected thereby; or
(iii) (A) there has been a breach by
the Company of any representation, warranty
covenant or agreement set forth in this Agreement
or if any representation or warranty of the
Company shall have become untrue, in either case
such that the conditions set forth in Section
7.3(a) will not be satisfied at the Closing Date
and (B) such breach is not curable, or, if curable,
is not cured within 30 days after written notice
of such breach is given by Parent to the Company;
provided that the right to terminate this Agreement
pursuant to this clause (iii) shall not be
available to Parent if it, at such time, is in
material breach of any representation, warranty,
covenant or agreement set forth in this Agreement
such that the conditions set forth in Section 7.2(a)
will not be satisfied at the Closing Date.
5. Section 8.5(a) of the Agreement is hereby deleted and replaced in
its entirety by the following:
SECTION 8.5. EFFECT OF TERMINATION.
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(a) If this Agreement is terminated (i) by
the Company or Parent pursuant to clause (i) or (ii)
of Section 8.2 or clause (iii) of section 8.4 and (A)
(1) in the case of a termination pursuant to clause
(i) of Section 8.2 or clause (iii) of Section 8.4,
such termination results from the breach by the
Company in a material respect of any of its material
agreements or covenants set forth in this Agreement
and at the time of such breach, any person shall
have made a Company Acquisition Proposal that had
become public and then remained pending or shall
have publicly announced and not withdrawn an
intention (whether or not conditional) to make a
Company Acquisition Proposal, or (2) in the case
of a termination pursuant to clause (ii) of Section
8.2, at the time of the Shareholders' Meeting, any
person shall have made a Company Acquisition
Proposal that had become public and then remained
pending or shall have publicly announced and not
withdrawn an intention (whether or not conditional)
to make a Company Acquisition Proposal, (B) Parent
was not in material breach of this Agreement,
(C) the condition set forth in Section 7.1(a) was
not satisfied at the time of such termination,
(D) the board of directors at no time withdrew,
modified or changed, in any manner adverse to Parent,
the board's approval or recommendation of the Merger
or recommended approval of a Company Acquisition
Proposal, or resolved to do any of the foregoing and
(E) within 12 months after such termination the
Company shall consummate or enter into a definitive
agreement which is ultimately consummated with the
proponent of such Company Acquisition Proposal or
with another party pursuant to a proposal which is
superior to such proposal, (ii) by the Company
pursuant to clause (i) of Section 8.3 or (iii) by
Parent pursuant to clause (i) or (ii) of Section 8.4;
then, the Company shall pay Parent $70 million (the
"Termination Amount") upon termination of this
Agreement. All payments shall be made in cash by
wire transfer to an account designated by Parent on
(1) in the case of clause 8.5(a)(ii) the date of
termination of this Agreement, (2) in the case of
clause 8.5(a)(iii), the date which is the third
business day following the date of termination of
this Agreement if this Agreement is terminated by
Parent, and (3) in the case of clause 8.5(a)(i),
the date on which the Company Acquisition
Proposal referred to in clause (E) thereof is
consummated. The Company acknowledges that the
agreements contained in this Section 8.5(a) are an
integral part of the transactions contemplated by
this Agreement and constitute liquidated damages
and not a penalty, and that, without these
agreements, Parent would not enter into this
Agreement; accordingly, if the Company fails
promptly to pay any amount due pursuant to this
Section 8.5(a), and, in order to obtain such payment,
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Parent commences a suit which results in a judgment
against the Company for the payment set forth in
this Section 8.5(a), the Company shall pay to Parent
its costs and expenses (including attorneys' fees) in
connection with such suit, together with interest on
such amount from the date payment was required to be
made until the date such payment is actually made at
the annual prime lending rate of Citigroup, N.A. in
effect from time to time from the date such payment
was required to be made, plus one percent (1%).
6. Except as amended by this Amendment, the Original Agreement
remains in full force and effect and all of the representations and warranties
made in the Original Agreement are true and correct as of the date of the
Original Agreement as if the Amendment had been in effect on such date.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first
written above.
DOMINION RESOURCES, INC.
By: /s/ Xxxx. X. Xxxxx
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Name: Xxxx. X. Xxxxx
Title: Chairman, President and
Chief Executive Officer
CONSOLIDATED NATURAL GAS COMPANY
By: /s/ Xxxx. X. Xxxxx
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Name: Xxxx. X. Xxxxx
Title: Chairman, President and
Chief Executive Officer
XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President and Chief
Executive Officer
