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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 2001
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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EL PASO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0568816
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
BRITTON WHITE JR.
EXECUTIVE VICE PRESIDENT
AND GENERAL COUNSEL
EL PASO BUILDING EL PASO BUILDING
1001 LOUISIANA STREET 1001 LOUISIANA STREET
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
(713) 420-2600 (713) 420-2600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
INCLUDING NUMBER,
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE INCLUDING AREA CODE, OF AGENT FOR SERVICE)
OFFICES)
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COPIES TO:
G. MICHAEL O'LEARY, ESQ.
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4200
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions and other factors.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(2) PER SHARE(3) OFFERING PRICE(3) REGISTRATION FEE
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Common Stock(1)................. 133,690 $69.45 $9,284,771 $2,321
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(1) Includes preferred stock purchase rights relating to each share of Common
Stock, par value $3.00 per share. The preferred stock purchase rights are
associated with and trade with the Common Stock.
(2) The number of shares of Common Stock registered hereby is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(3) Determined in accordance with Rule 457(c) based on average of the high and
low prices of the Common Stock on April 25, 2001 as reported in The Wall
Street Journal on April 26, 2001.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective.
This preliminary prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 1, 2001
PRELIMINARY PROSPECTUS
133,690 SHARES
EL PASO LOGO
EL PASO CORPORATION
COMMON STOCK
This prospectus covers the resale of shares of El Paso Corporation common
stock, par value $3.00 per share by certain persons listed in this prospectus as
selling stockholders. They are offering and selling up to 133,690 shares of our
common stock. All net proceeds from the sale of the shares of common stock
offered by this prospectus will go to the selling stockholders. We will not
receive any proceeds from such sales.
The selling stockholders may offer their shares of common stock through
public or private transactions, in the over-the-counter markets, on any
exchanges on which our common stock is traded at the time of sale, at prevailing
market prices or at privately negotiated prices. The selling stockholders may
engage brokers or dealers who may receive commissions or discounts from the
selling stockholders. We will pay substantially all of the expenses incident to
the registration of such shares, except for the selling commissions.
El Paso's common stock is listed for trading on the New York Stock Exchange
and the Pacific Exchange under the trading symbol "EPG." On April 26, 2001, the
closing price of El Paso's common stock on the New York Stock Exchange was
$70.06 per share.
Our principal executive offices are located at the El Paso Building, 1001
Louisiana Street, Houston, Texas 77002, and our telephone number is (713)
420-2600.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" AND "CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS" ON PAGE 2.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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TABLE OF CONTENTS
Risk Factors................................................ 2
El Paso's Business.......................................... 2
Cautionary Statement Regarding Forward-Looking Statements... 2
Use of Proceeds............................................. 3
Selling Stockholders........................................ 4
Plan of Distribution........................................ 5
Description of El Paso Company Stock........................ 6
Where You Can Find More Information......................... 6
Legal Matters............................................... 7
Experts..................................................... 7
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RISK FACTORS
Before you invest in El Paso common stock, you should read the risks,
uncertainties and factors which may adversely affect El Paso that are discussed
under the caption "Risk Factors and Cautionary Statement For Purposes of the
"Safe Harbor" Provisions of the Private Securities Litigation Reform Act of
1995" in our Current Report on Form 8-K filed on March 23, 2001, which are
incorporated by reference in this prospectus.
EL PASO'S BUSINESS
El Paso is a global energy company with operations that span the wholesale
energy value chain, from natural gas production and extraction to power
generation. El Paso's principal operations include: the transportation,
gathering, processing, and storage of natural gas; marketing of energy and
energy-related commodities and products; generation of power; refining of
petroleum; production of chemicals; development and operation of energy
infrastructure facilities; exploration and production of natural gas and oil;
and mining of coal.
El Paso's principal executive offices are located at the El Paso Building,
1001 Louisiana Street, Houston, Texas 77002, and our telephone number is (713)
420-2600.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
We have made statements in this document and in documents that we have
incorporated by reference into this document that constitute forward-looking
statements, as that term is defined in the Private Securities Litigation Reform
Act of 1995. These statements are subject to risks and uncertainties.
Forward-looking statements include information concerning possible or assumed
future results of operations of El Paso. These statements may relate to, but are
not limited to, information or assumptions about earnings per share, capital and
other expenditures, dividends, financing plans, capital structure, cash flow,
pending legal proceedings and claims, including environmental matters, future
economic performance, operating income, cost savings, management's plans, goals
and objectives for future operations and growth and markets for the securities
of El Paso. These forward-looking statements generally are accompanied by words
such as "intend," "anticipate," "believe," "estimate," "expect," "should" or
similar expressions. You should understand that these forward-looking statements
are estimates reflecting the best judgment of senior management of El Paso, not
guarantees of future performance. They are subject to a number of assumptions,
risks and uncertainties that could cause actual results to differ materially
from those expressed or implied in the forward-looking statements. Important
factors that could cause actual results to differ materially from estimates or
projections contained in forward-looking statements include, among others, the
following:
- the risk that earnings may be adversely affected by fluctuating energy
prices;
- the risk that rates charged to customers may be reduced by governmental
authorities;
- the highly competitive nature of the natural gas transportation,
gathering, processing and storage businesses, the oil and gas exploration
and production business, the energy marketing and power generation
industries, the crude oil refining and chemical production businesses and
the coal mining business;
- the risk of favorable customer contracts expiring or being renewed on
less attractive terms;
- the timing and success of our exploration and development drilling
programs, which would affect production levels and reserves;
- changes to our estimates of oil, gas and coal reserves;
- the risk of financial losses arising out of derivative transactions;
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- risks incident to the drilling and operation of oil and gas wells;
- risks incident to operating crude oil refineries, chemical plants and
coal mines;
- future drilling, production and development costs, including drilling rig
rates;
- the costs of environmental liabilities, regulations and litigation;
- the impact of operational hazards;
- the risk that required regulatory approvals for proposed pipeline,
storage and power generation projects may be delayed or may only be
granted on terms that are unacceptable or significantly less favorable
than anticipated;
- the risks associated with future weather conditions;
- the risk that our telecommunications strategy may not be successful;
- the risk that the former businesses of The Coastal Corporation may not be
successfully integrated with our businesses;
- the risk that we may not fully realize the benefits expected to result
from our merger with The Coastal Corporation;
- the impact of the loss of key employees; and
- the risk that other firms will further expand into markets in which we
operate.
These factors are more fully described in our 2000 Annual Report on Form
10-K under the heading "Risk Factors and Cautionary Statement For Purposes of
the "Safe Harbor" Provisions of the Private Securities Litigation Reform Act of
1995" and are incorporated herein by reference. Other factors that could cause
actual results to differ materially from estimates and projections contained in
forward-looking statements are described in the other documents that we
incorporated by reference into this document. In addition, we can give you no
assurance that:
- we have correctly identified and assessed all of the factors affecting
our businesses;
- the publicly available and other information with respect to these
factors on which we have based our analysis is complete or correct;
- our analysis is correct; or
- our strategies, which are based in part on this analysis, will be
successful.
Accordingly, you should not place undue reliance on forward-looking
statements, which speak only as of the date of this prospectus, or, in the case
of documents incorporated by reference, the date of those documents.
All subsequent written and oral forward-looking statements attributable to
us or any person acting on our behalf are expressly qualified in their entirety
by the cautionary statements contained or referred to in this section. We do not
undertake any obligation to release publicly any revisions to these forward-
looking statements to reflect events or circumstances after the date of this
prospectus or to reflect the occurrence of unanticipated events.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
common stock offered by the selling stockholder; nor will such proceeds be
available for our use or benefit.
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SELLING STOCKHOLDERS
This prospectus relates to the sale by certain selling stockholders from
time to time of up to 133,690 shares of El Paso common stock. The certain
selling stockholders acquired the shares of common stock being offered by this
prospectus pursuant to certain "earn-out" rights granted to them in connection
with our acquisition of EnCap Investments L.C. in March of 1999. The shares of
common stock offered by the selling stockholders are included in the
registration statement of which this prospectus is a part pursuant to an
undertaking made in connection with the EnCap acquisition. The following table
sets forth as of May 1, 2001 certain information with respect to the selling
stockholders.
NUMBER OF NUMBER OF
SHARES BENEFICIALLY NUMBER OF SHARES BENEFICIALLY
OWNED BEFORE SHARES OWNED AFTER
SELLING STOCKHOLDER OFFERING(1) BEING OFFERED OFFERING(2)
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David B. Miller............................. 81,787 30,080 51,707
Gary R. Peterson............................ 68,159 30,080 38,079
D. Martin Phillips.......................... 78,199 30,080 48,119
Robert L. Zorich............................ 73,159 30,080 43,079
Banc One Capital Partners VIII, Ltd. ....... 13,370 13,370 0
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Total....................................... 314,674 133,690 180,984
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(1) Less than 1%
(2) Assumes that each selling stockholder will sell all of the shares set forth
above under "Number of Shares Being Offered." The selling stockholders may
offer all, some or none of their shares.
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We will pay all costs and expenses incurred in connection with the
registration under the Securities Act of 1933 of the shares offered hereby,
including, but not limited to, all registration and filing fees, any stock
exchange listing fee, printing expenses and fees and disbursements of counsel
and accountants for El Paso. The selling stockholders will pay all brokerage
fees and commissions, if any, incurred in connection with the sale of the
shares.
PLAN OF DISTRIBUTION
The shares of common stock offered by the selling stockholders may be
offered and sold by means of this prospectus from time to time as market
conditions permit in one or more transactions on the NYSE, PSE, in the
over-the-counter market, in negotiated transactions or otherwise, or through a
combination of these methods, at fixed prices, which may be changed, at prices
and terms then prevailing or at prices related to the then-current market price,
or at negotiated prices. These shares may be sold by one or more of the
following methods, without limitation:
- a block trade in which a broker or dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as principal
to facilitate the transaction;
- purchases by a broker or dealer as principal and resale by the broker or
dealer for its account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
- face-to-face transactions between sellers and purchasers without brokers
or dealers.
In making sales, brokers or dealers engaged by the selling stockholders may
arrange for other brokers or dealers to participate. These brokers or dealers
may receive commissions or discounts from selling stockholders in amounts to be
negotiated.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In effecting sales,
brokers or dealers engaged by the selling stockholders may arrange for other
brokers or dealers to participate in the resales.
The selling stockholders and any persons who participate in the
distribution of the shares offered by this prospectus may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, and any
commissions received by them and profit on any resale of the shares as principal
may be considered underwriting discounts and commissions under the Securities
Act of 1933.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Securities Exchange Act of
1934, any person engaged in the distribution of the shares may not
simultaneously engage in market making activities with respect to our common
stock for a specified period prior to the commencement of such distribution and
until its completion. In addition, each selling stockholder will be subject to
applicable provisions of the Securities Exchange Act of 1934 and the associated
rules and regulations under the Securities Exchange Act of 1934, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our common stock by the selling stockholders. We will make copies of
this prospectus available to the selling stockholders and have informed them of
the need for delivery of copies of this prospectus to purchasers at or prior to
the time of any sale of the shares.
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DESCRIPTION OF EL PASO COMMON STOCK
The authorized capital stock of El Paso consists of 750,000,000 shares of
common stock and 50,000,000 shares of preferred stock. The description of our
common stock is contained in our registration statement on Form 8-A, dated April
5, 2001, and the description of our preferred stock purchase rights associated
with our common stock is contained in our registration statement on Form 8-A/A,
dated January 29, 1999. Both of these registration statements are incorporated
by reference into this prospectus. As of March 16, 2001, we had outstanding
508,892,767 shares of our common stock and 200,000 shares of our Series B
Mandatorily Convertible Single Reset Preferred Stock.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities
Act of 1933 that registers the securities offered by this prospectus. The
registration statement, including the attached exhibits, contains additional
relevant information about us. The rules and regulations of the SEC allows us to
omit some information included in the registration statement from this
prospectus.
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934. You may read and copy this
information at the following locations of the SEC:
Public Reference Room New York Regional Office Chicago Regional Office
Room 1024 Suite 100 Citicorp Center
Judiciary Plaza 7 World Trade Center Suite 1400
450 Fifth Street, N.W. New York, New York 10048 500 West Madison Street
Washington, D.C. 20549 Chicago, Illinois
60661-2511
You may also obtain copies of this information by mail from the public
reference section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. The SEC also maintains an
Internet world wide website that contains reports, proxy statements and other
information about issuers, including El Paso, who file electronically with the
SEC. The address of that site is http://www.sec.gov. You can also inspect
reports, proxy statements and other information about us at the offices of The
New York Stock Exchange, Inc., located at 20 Broad Street, New York, New York
10005 and at the offices of the Pacific Exchange at 301 Pine Street, San
Francisco, California 94104.
The SEC allows us to "incorporate by reference" information into this
document. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be part of this document, except for
any information that is superseded by information that is included directly in
this document.
We incorporate by reference the documents listed below that we have
previously filed with the SEC. They contain important information about us and
our financial condition. Some of these filings have been amended by later
filings, which are also listed.
- Annual Report on Form 10-K, for the year ended December 31, 2000;
- Current Reports on Form 8-K filed January 3, 2001, January 29, 2001,
February 2, 2001, February 5, 2001, February 6, 2001, February 15, 2001,
February 21, 2001, February 23, 2001, March 2, 2001, March 23, 2001,
March 26, 2001, and March 29, 2001;
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- Proxy Statement for the Annual Meeting of Shareholders to be held on May
21, 2001, filed March 27, 2001; and
- The description of our common stock contained in our registration
statement on Form 8-A, dated April 5, 2001; and the description of our
preferred stock purchase rights contained in our registration statement
on Form 8-A/A, dated January 29, 1999.
We incorporate by reference additional documents that we may file with the
SEC after the date of the initial registration statement until the registration
statement becomes effective. We also incorporate by reference additional
documents that we may file with the SEC until all of the securities offered by
this prospectus have been sold. These documents include periodic reports,
including Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us or from the SEC through the SEC's website at the address
provided above. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents unless the exhibit is
specifically incorporated by reference as an exhibit in this document. You can
obtain documents incorporated by reference in this document by requesting them
in writing or by telephone from us at the following address:
El Paso Corporation
Office of Investor Relations
El Paso Building
1001 Louisiana Street
Houston, Texas 77002
Telephone No.: (713) 420-2600
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION THAT DIFFERS FROM, OR ADDS TO, THE INFORMATION IN THIS DOCUMENT
OR IN OUR DOCUMENTS THAT ARE PUBLICLY FILED WITH THE SEC. THEREFORE, IF ANYONE
DOES GIVE YOU DIFFERENT OR ADDITIONAL INFORMATION, YOU SHOULD NOT RELY ON IT.
IF YOU ARE IN A JURISDICTION WHERE IT IS UNLAWFUL TO OFFER TO EXCHANGE OR
SELL, OR TO ASK FOR OFFERS TO EXCHANGE OR BUY, THE SECURITIES OFFERED BY THIS
DOCUMENT, OR IF YOU ARE A PERSON TO WHOM IT IS UNLAWFUL TO DIRECT THESE
ACTIVITIES, THEN THE OFFER PRESENTED BY THIS DOCUMENT DOES NOT EXTEND TO YOU.
THE INFORMATION CONTAINED IN THIS DOCUMENT SPEAKS ONLY AS OF ITS DATE
UNLESS THE INFORMATION SPECIFICALLY INDICATES THAT ANOTHER DATE APPLIES.
LEGAL MATTERS
Certain legal matters in connection with the validity of the common stock
offered under this prospectus have been passed upon for us by Andrews & Kurth,
L.L.P., Houston, Texas.
EXPERTS
Our consolidated financial statements as of December 31, 2000 and 1999, and
for each of the three years in the period ended December 31, 2000, incorporated
by reference in this prospectus from the 2000 Annual Report on Form 10-K, have
been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The audited supplemental combined financial statements incorporated by
reference in this prospectus from the Current Report on Form 8-K dated March 23,
2001, except as they relate to El Paso CGP Company (formerly The Coastal
Corporation), have been audited by PricewaterhouseCoopers
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LLP, independent accountants, and, insofar as they relate to El Paso CGP Company
(formerly The Coastal Corporation), by other accountants, whose report thereon
appears therein. Such financial statements have been so included in reliance on
the reports of such independent accountants given on the authority of such firm
as experts in auditing and accounting.
The consolidated financial statements and related financial statement
schedule of El Paso CGP Company (formerly The Coastal Corporation) incorporated
in this prospectus by reference from El Paso's Current Report on Form 8-K dated
March 23, 2001, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
Information related to the estimated proved reserves attributable to
certain oil and gas properties of subsidiaries of El Paso CGP Company as of
December 31, 2000 and estimates of future net cash flows and present value of
the reserves have been incorporated by reference in El Paso's Current Report on
Form 8-K dated March 23, 2001, which is incorporated herein by reference, in
reliance on the reserve report, dated January 29, 2001, prepared by Huddleston &
Co., Inc., independent petroleum engineers.
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, 2001
133,690 SHARES
[EL PASO CORPORATION LOGO]
EL PASO CORPORATION
COMMON STOCK
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PROSPECTUS
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than selling
or underwriting discounts and commissions, to be incurred by El Paso in
connection with the issuance and distribution of the shares of common stock
being registered. All amounts shown are estimated except the Commission
registration fee.
SEC registration fee........................................ $ 2,321
Printing and engraving expenses............................. 10,000
Legal fees and expenses..................................... 10,000
Accounting fees and expenses................................ 5,000
Miscellaneous............................................... 1,500
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Total.................................................. $28,821
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS OF EL PASO CORPORATION
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in connection with specified
actions, suits, proceedings whether civil, criminal, administrative, or
investigative (other than action by or in the right of the corporation -- a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement, or
otherwise.
Article X of the by-laws of El Paso requires indemnification to the full
extent permitted under Delaware law as from time to time in effect. Subject to
any restrictions imposed by Delaware law, the by-laws of El Paso provide an
unconditional right to indemnification for all expense, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes, or penalties
and amounts paid in settlement) actually and reasonably incurred or suffered by
any person in connection with any actual or threatened proceeding (including, to
the extent permitted by law, any derivative action) by reason of the fact that
such person is or was serving as a director or officer or employee of El Paso,
such person or is or was serving at the request of El Paso as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, or other enterprise, including service with respect to an
employee benefit plan. The by-laws of El Paso also provide that El Paso may, by
action of its board of directors, provide indemnification to its agents with the
same scope and effect as the foregoing indemnification of directors and
officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts of omissions not in good faith or
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which involve intentional misconduct or a knowing violation of law, (iii)
payment of unlawful dividends or unlawful stock purchases or redemptions, or
(iv) any transaction from which the director derived an improper personal
benefit.
Article 10 of El Paso's restated certificate of incorporation, as amended,
provides that to the full extent that the DGCL, as it now exists or may
hereafter be amended, permits the limitation or elimination of the liability of
directors, a director of El Paso shall not be liable to El Paso or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any amendment to or repeal of such Article 10 shall not adversely affect any
right or protection of a director of El Paso for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
El Paso maintains directors' and officers' liability insurance which
provides for payment, on behalf of the directors and officers of El Paso and its
subsidiaries, of certain losses of such persons (other than matters uninsurable
under law) arising from claims, including claims arising under the Securities
Act of 1933, as amended ("Securities Act") for acts or omissions by such persons
while acting as directors or officers of El Paso and/or its subsidiaries, as the
case may be.
ITEM 16. EXHIBITS
EXHIBIT
NO. EXHIBIT
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3.1 -- Restated Certificate of Incorporation of El Paso
(incorporated by reference to Exhibit 3.A to El Paso's
Current Report on Form 8-K, File No. 1-14365, filed February
14, 2001).
3.2 -- Restated By-laws of El Paso (incorporated by reference to
Exhibit 3.B to El Paso's Current Report on Form 8-K, File
No. 1-14365, filed February 14, 2001).
4.1 -- Amended and Restated Shareholder Rights Agreement, dated as
of January 20, 1999, by and between El Paso and Fleet
National Bank c/o Equiserve, as Rights Agent (incorporated
by reference to Exhibit 1 of El Paso's Registration
Statement on Form 8-A/A, File No. 1-14365, filed January 29,
1999)
*5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of the
common stock being registered.
*23.1 -- Consent of PricewaterhouseCoopers LLP.
*23.2 -- Consent of Deloitte & Touche LLP.
*23.3 -- Consent of Huddleston & Co., Inc.
*23.4 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
*24.1 -- Powers of Attorney (included on signature page).
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* Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated
II-2
14
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and (iii)
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by El Paso pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of El Paso's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
of the Registrants pursuant to the provisions of Item 15. of this Registration
Statement, or otherwise, each Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by El Paso of expenses incurred or paid by a
director, officer or controlling person of each of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, each Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy, as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on April 30, 2001.
EL PASO CORPORATION
Registrant
By /s/ WILLIAM A. WISE
------------------------------------
William A. Wise
Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes H.
Brent Austin and Britton White Jr., and each of them as attorneys-in-fact with
full power of substitution, to execute in the name and on behalf of such person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates as indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ WILLIAM A. WISE Chairman of the Board, President, April 30, 2001
- ------------------------------------------------ Chief Executive Officer and
(William A. Wise) Director
/s/ DAVID A. ARLEDGE Vice Chairman of the Board and April 30, 2001
- ------------------------------------------------ Director
(David A. Arledge)
/s/ H. BRENT AUSTIN Executive Vice President and Chief April 30, 2001
- ------------------------------------------------ Financial Officer
(H. Brent Austin)
/s/ JEFFREY I. BEASON Senior Vice President and April 30, 2001
- ------------------------------------------------ Controller (Chief Accounting
(Jeffrey I. Beason) Officer)
/s/ BYRON ALLUMBAUGH Director April 30, 2001
- ------------------------------------------------
(Byron Allumbaugh)
/s/ JOHN M. BISSELL Director April 30, 2001
- ------------------------------------------------
(John M. Bissell)
/s/ JUAN CARLOS BRANIFF Director April 30, 2001
- ------------------------------------------------
(Juan Carlos Braniff)
/s/ JAMES F. GIBBONS Director April 30, 2001
- ------------------------------------------------
(James F. Gibbons)
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16
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ANTHONY W. HALL JR. Director April 30, 2001
- ------------------------------------------------
(Anthony W. Hall Jr.)
/s/ RONALD L. KUEHN, JR. Director April 30, 2001
- ------------------------------------------------
(Ronald L. Kuehn, Jr.)
/s/ J. CARLETON MACNEIL JR. Director April 30, 2001
- ------------------------------------------------
(J. Carleton MacNeil Jr.)
/s/ THOMAS R. MCDADE Director April 30, 2001
- ------------------------------------------------
(Thomas R. McDade)
/s/ MALCOLM WALLOP Director April 30, 2001
- ------------------------------------------------
(Malcolm Wallop)
/s/ JOE B. WYATT Director April 30, 2001
- ------------------------------------------------
(Joe B. Wyatt)
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17
EXHIBIT LIST
EXHIBIT
NO. EXHIBIT
- ------- -------
3.1 -- Restated Certificate of Incorporation of El Paso
(incorporated by reference to Exhibit 3.A to El Paso's
Current Report on Form 8-K, File No. 1-14365, filed February
14, 2001).
3.2 -- Restated By-laws of El Paso (incorporated by reference to
Exhibit 3.B to El Paso's Current Report on Form 8-K, File
No. 1-14365, filed February 14, 2001).
4.1 -- Amended and Restated Shareholder Rights Agreement, dated as
of January 20, 1999, by and between El Paso and Fleet
National Bank c/o Equiserve, as Rights Agent (incorporated
by reference to Exhibit 1 of El Paso's Registration
Statement on Form 8-A/A, File No. 1-14365, filed January 29,
1999)
*5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of the
common stock being registered.
*23.1 -- Consent of PricewaterhouseCoopers LLP.
*23.2 -- Consent of Deloitte & Touche LLP.
*23.3 -- Consent of Huddleston & Co., Inc.
*23.4 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
*24.1 -- Powers of Attorney (included on signature page).
- ---------------
* Filed herewith.