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 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 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 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.
(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, 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
____________________________________
Name: Xxxx. X. Xxxxx
Title: Chairman, President and
Chief Executive Officer
CONSOLIDATED NATURAL GAS COMPANY
By: /s/ Xxxx. X. Xxxxx
____________________________________
Name: Xxxx. X. Xxxxx
Title: Chairman, President and
Chief Executive Officer
XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxx X. Xxxxxx
____________________________________
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
