EXHIBIT 99.2
AMENDMENT NO. 1 (this "Amendment"), dated as of June 16, 1998, by
and among El Paso Natural Gas Company, a Delaware corporation ("Parent"),
El Paso Energy Corporation, a Delaware corporation ("Holding"), El Paso
Acquisition Company, a Delaware corporation ("Merger Sub"), and DeepTech
International Inc., a Delaware corporation (the "Company"), to the
Agreement and Plan of Merger, dated as of February 27, 1998 (the "Merger
Agreement"), by and among Parent, Merger Sub and the Company. All
capitalized terms not defined herein shall have the respective meanings
ascribed to them in the Merger Agreement.
WHEREAS, Parent may adopt a holding company structure (the
"Holding Company Reorganization") whereby Parent and its subsidiaries,
including Merger Sub, would become direct and indirect subsidiaries of
Holding, a newly formed Delaware holding company which has not engaged in
any business other than in connection with the Holding Company
Reorganization.
WHEREAS, pursuant to the Holding Company Reorganization, holders
of Parent Common Stock would become holders on a share-for-share basis of
shares of common stock of Holding (the "Holding Common Stock").
WHEREAS, Parent, Merger Sub and the Company desire to add Holding
as a party to the Merger Agreement and to provide for Holding to perform
the obligations of Parent under the Merger Agreement if the Holding Company
Reorganization occurs prior to the Effective Time.
NOW, THEREFORE, Parent, Holding, Merger Sub and the Company agree
as follows:
1. By this Amendment, Holding is hereby added as a party to the
Merger Agreement.
2. If the Holding Company Reorganization occurs prior to the
Effective Time, for the period subsequent to the Holding Company
Reorganization:
(a) Unless the context otherwise requires, all references in
the Merger Agreement to Parent, except with respect to Article II of the
Merger Agreement, shall be deemed references to Holding, and in accordance
with Section 1.9(g) of the Merger Agreement, all references to Parent
Common Stock shall be deemed references to Holding Common Stock.
(b) Unless the context otherwise requires, references to the
Restated Certificate of Incorporation of Parent shall be deemed references
to the Restated Certificate of Incorporation of Holding as in effect
immediately prior to the Effective Time.
(c) Holding shall perform all of the obligations of Parent
under the Merger Agreement which have not theretofore been performed.
(d) The capital stock of Merger Sub will be transferred by
Parent to Holding so that, notwithstanding any other provision of the
Merger Agreement, Merger Sub will be a wholly owned Subsidiary of Holding.
(e) Holding hereby represents and warrants to the Company as
follows:
(i) Holding is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) As of the date hereof, the authorized capital
stock of Holding consists of 1,000 shares of common stock, par value $1.00
per share, all of which are validly issued and outstanding, fully paid and
nonassessable and are directly owned by Parent free and clear of all liens,
claims and encumbrances. Upon the consummation of the Merger, the
authorized capital stock of Holding will consist of 275,000,000 shares of
common stock, par value $3.00 per share, and 25,000,000 shares of preferred
stock, par value $.01 per share.
(iii) Holding has the corporate power to enter into
this Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors and
sole stockholder of Holding. This Agreement constitutes a valid and binding
obligation of Holding enforceable against Holding in accordance with its
terms except as enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally
and except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought. No other corporate proceedings on the
part of Holding are necessary to authorize this Agreement and the
transactions contemplated hereby. Except as required by the HSR Act, the
Securities Act, the Exchange Act and the corporation, securities or blue
sky laws or regulations of the various states, no filing or registration
with, or authorization, consent or approval of, any Governmental Entity is
necessary for the consummation by Holding of the Merger or the transactions
contemplated by this Agreement, other than filings, registrations,
authorizations, consents or approvals the failure to make or obtain which
would not prevent the consummation of the transactions contemplated this
Agreement.
(f) References to Parent and Merger Sub, collectively, in
Sections 6.2(a), 6.2(b) and 7.1(b) of the Merger Agreement shall be deemed
to refer to Parent, Merger Sub and Holding.
3. Except as expressly set forth herein, the Merger Agreement
shall continue in full force and effect in accordance with its terms.
4. This Amendment shall not be effective unless and until the
Merger Agreement, as amended by this Amendment (as amended, the "Amended
Merger Agreement"), has been duly approved by the holders of a majority of
the outstanding shares of Company Common Stock entitled to vote or act by
consent thereon; it being understood that the Merger Agreement has
previously been duly approved by written consents of the holders of the
Company Common Stock and that the foregoing written consents shall remain
in full force and effect notwithstanding any failure by the holders of
Company Common Stock to approve the Amended Merger Agreement.
5. This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
6. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED 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 THEREOF.
IN WITNESS WHEREOF, the parties have executed this Amendment as
the date first written above.
EL PASO NATURAL GAS COMPANY
By: /s/ H. Xxxxx Xxxxxx
-----------------------------------
Name: H. Xxxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
EL PASO ENERGY CORPORATION
By: /s/ H. Xxxxx Xxxxxx
-----------------------------------
Name: H. Xxxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
EL PASO ACQUISITION COMPANY
By: /s/ H. Xxxxx Xxxxxx
-----------------------------------
Name: H. Xxxxx Xxxxxx
Title: Executive Vice President
DEEPTECH INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxxx, XX
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Name: Xxxxxxx X. Xxxxxxx, XX
Title: President
