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EXHIBIT 2.1
AGREEMENT OF MERGER
OF
▇▇▇▇▇▇▇▇ GAS COMPANY SHAREHOLDER, INC.
(A DELAWARE CORPORATION)
WITH AND INTO
DUKE ENERGY FIELD SERVICES CORPORATION
(A DELAWARE CORPORATION)
This Agreement of Merger, dated as of ___________, 2000 (this
"Agreement"), is hereby executed pursuant to Section 251 of the General
Corporation Law of the State of Delaware (the "DGCL") by and between ▇▇▇▇▇▇▇▇
GAS COMPANY SHAREHOLDER, INC., a Delaware corporation ("PGCSI"), and DUKE ENERGY
FIELD SERVICES CORPORATION, a Delaware corporation ("DEFS Corp." and, following
the Merger (as hereinafter defined), the "Surviving Corporation," and,
collectively with PGCSI, the "Constituent Corporations").
RECITALS:
1. Pursuant to its Certificate of Incorporation, as amended to the date
hereof, PGCSI is authorized to issue a total of 1,000 shares of Common Stock,
with no par value ("PGCSI Common Stock"), of which ten shares are now issued and
outstanding and each of which is entitled to one vote and held of record by
▇▇▇▇▇▇▇▇ Petroleum Company ("PGCSI Parent");
2. Pursuant to its Certificate of Incorporation, DEFS Corp. is
authorized to issue a total of 1,000 shares of Common Stock, par value $.01 per
share ("DEFS Corp. Common Stock"), of which 1,000 shares are now issued and
outstanding and each of which is entitled to one vote and held of record by Duke
Energy Natural Gas Corporation ("DENG"), a wholly owned subsidiary of Duke
Energy Corporation ("Duke");
3. The registered office of PGCSI in the State of Delaware is located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and The
▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation Systems, Inc. is the registered agent in charge
thereof upon whom process against PGCSI may be served;
4. The registered office of DEFS Corp. in the State of Delaware is
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and The Corporation
Trust Company is the registered agent in charge thereof upon whom process
against DEFS Corp. may be served; and
5. The Boards of Directors of both of the Constituent Corporations have
adopted resolutions declaring the advisability of the proposed merger (the
"Merger") of PGCSI with and into DEFS Corp. upon the terms and conditions
hereinafter set forth, approving this Agreement and directing that it be
submitted to their respective sole stockholders for approval in accordance with
the applicable statutes of the State of Delaware.
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6. Upon consummation of the Merger, DENG and PGCSI Parent will enter
into a Shareholders Agreement.
7. It is intended that the Merger shall qualify as a tax-free
"reorganization" within the meaning of Section 368 of the Internal Revenue Code,
as amended.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of prescribing
the terms and conditions of the Merger, the mode of carrying it into effect, the
manner and basis of converting shares of each of the Constituent Corporations
into shares of the Surviving Corporation and such other details and provisions
of the Merger as are deemed necessary or desirable, the parties hereto have
agreed and covenanted, and do hereby agree and covenant, as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. Each capitalized term used and not otherwise
defined herein shall have the meaning given such term set forth below:
"Average Market Price" shall mean, with respect to the Surviving
Corporation Common Stock to be sold by the Surviving Corporation to the public
in the IPO, the average of the closing prices, as reported on the NYSE Composite
Tape, on each of the first five days of trading on the NYSE (exclusive of the
pricing day).
"Company" shall mean Duke Energy Field Services, LLC, a Delaware
limited liability company.
"Contribution Closing" shall mean ____________, 2000.
"Duke's Corporation Interest" shall mean the difference between (x) the
Parties' Corporation Interest and (y) ▇▇▇▇▇▇▇▇' Corporation Interest.
"Enterprise Value" shall mean the sum of (x) the Parties' Equity Value
and (y) $2,400,000,000; provided that, if the Effective Time is on or after the
date two years after the consummation of the Contribution Closing, "Enterprise
Value" shall mean $5,500,000,000.
"Independent Directors" shall mean directors meeting the independence
and experience requirements, as set forth by the New York Stock Exchange as of
the date of the IPO for membership on an audit committee of a board of
directors, with respect to each of PGCSI, DENG and the Surviving Corporation.
"IPO" shall mean the initial offering of shares of Surviving
Corporation Common Stock to the public in a transaction registered under the
Securities Act of 1933, as amended.
"NYSE" shall mean the New York Stock Exchange, Inc.
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"Parties' Corporation Interest" shall mean the difference between (x)
100% and (y) the Public's Corporation Interest.
"Parties' Equity Value" shall mean the product of (i) the quotient of
(x) the Parties' Corporation Interest divided by (y) the Public's Actual
Corporation Interest multiplied by (ii) the Public's Equity Value.
"▇▇▇▇▇▇▇▇' Corporation Interest" shall mean the quotient, expressed as
a percentage, of (x) ▇▇▇▇▇▇▇▇ Equity Value divided by (y) Total Equity Value.
"▇▇▇▇▇▇▇▇ Enterprise Value" shall mean the product of (x) the
Enterprise Value and (y) .389.
"▇▇▇▇▇▇▇▇ Equity Value" shall mean the difference between (x) ▇▇▇▇▇▇▇▇
Enterprise Value and (y) $1,200,000,000.
"Public's Actual Corporation Interest" shall mean the quotient,
expressed as a percentage, of (x) [___] (equaling the number of shares of
Surviving Corporation Common Stock to be sold by the Surviving Corporation in
the IPO (excluding shares issued to officers and employees of the Surviving
Corporation or the Company concurrently with the IPO and without giving effect
to any underwriters' over-allotment)) divided by (y) [___] (equaling the number
of shares of Surviving Corporation Common Stock to be outstanding immediately
after the IPO (including shares issued to officers and employees of the
Surviving Corporation or the Company concurrently with the IPO and without
giving effect to any underwriters' over-allotment).
"Public's Corporation Interest" shall mean the quotient, expressed as a
percentage, of (x) [___] (equaling the number of shares of Surviving Corporation
Common Stock to be sold by the Surviving Corporation in the IPO (including
shares issued to officers and employees of the Surviving Corporation or the
Company concurrently with the IPO and without giving effect to any underwriters'
over-allotment)) divided by (y) [___] (equaling the number of shares of
Surviving Corporation Common Stock to be outstanding immediately after the IPO
(including shares issued to officers and employees of the Surviving Corporation
or the Company concurrently with the IPO and without giving effect to any
underwriters' over-allotment).
"Public's Equity Value" shall mean the product of (i) the Average
Market Price multiplied by (ii) the number of shares sold by the Surviving
Corporation in the IPO (excluding shares issued to officers and employees of the
Surviving Corporation or the Company in the IPO and without giving effect to any
underwriters' over-allotment).
"Surviving Corporation Common Stock" shall mean the common stock, par
value $.01 per share, of the Surviving Corporation.
"Total Equity Value" shall mean the quotient of (x) the Public's Equity
Value divided by (y) the Public's Actual Corporation Interest.
Section 1.2 Construction. Unless the context requires otherwise: (a)
the gender (or lack of gender) of all words used in this Agreement includes the
masculine, feminine and neuter; (b) references to Articles and Sections refer to
Articles and Sections of this
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Agreement; (c) references to laws refer to such laws as they may be amended from
time to time, and references to particular provisions of a law include any
corresponding provisions of any succeeding law; (d) references to money refer to
legal currency of the United States of America; (e) the word "including" means
"including, without limitation"; and (f) all capitalized terms defined herein
are equally applicable to both the singular and plural forms of such terms.
ARTICLE II
THE AGREEMENT
Section 2.1 Approval and Certification. This Agreement shall be
submitted as promptly as practicable to the sole stockholder of each of the
Constituent Corporations, and, if duly adopted and approved by each such
stockholder in accordance with the provisions of the DGCL, shall, subject to the
further provisions of this Agreement, promptly be certified in accordance with
the DGCL at such time as the respective authorized officers of PGCSI and DEFS
Corp. deem proper.
Section 2.2 Filing of Certificate and Plan of Merger. Immediately after
the approvals and certification referenced in Section 2.1 hereof, the
Constituent Corporations shall file this Agreement with the Secretary of State
of Delaware, as required by Section 251 of the DGCL. The Merger shall be
effective upon acceptance of such filing, which time is hereinafter called the
"Effective Time."
ARTICLE III
RESULT OF MERGER
Section 3.1 Effective Time Events. At the Effective Time:
(a) PGCSI shall be merged with and into DEFS Corp., with the
effect as provided in the DGCL, at which time the separate existence of PGCSI
shall cease.
(b) DEFS Corp., as the corporation surviving the Merger, shall
continue its corporate existence under the DGCL.
(c) The Certificate of Incorporation of the Surviving
Corporation shall be amended and restated in its entirety as set forth in
Exhibit A hereto (as so amended and restated, the "Amended and Restated
Charter") until the same shall thereafter be altered, amended or repealed in
accordance with applicable law and such Amended and Restated Charter.
(d) The Bylaws of the Surviving Corporation (the "Bylaws")
shall be amended and restated, in their entirety, as set forth in Exhibit B
hereto, until the same shall thereafter be altered, amended or repealed in
accordance with applicable law, the Amended and Restated Charter and such
Bylaws.
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(e) [All shares of PGCSI Common Stock issued and outstanding
immediately prior to the IPO shall automatically be converted, without any
action on the part of the holder thereof, into an aggregate of such number of
fully paid and non-assessable shares of Surviving Corporation Common Stock equal
to the ▇▇▇▇▇▇▇▇' Corporation Interest multiplied by [____] shares of Surviving
Corporation Common Stock (equaling the aggregate number of shares of Surviving
Corporation Common Stock to be outstanding after the IPO (including shares
issued to officers and employees of the Surviving Corporation and the Company
concurrently with the IPO and without giving effect to any underwriters'
over-allotment)), and all shares of PGCSI Common Stock thereafter shall be
cancelled and cease to exist.]
(f) [All shares of DEFS Corp. Common Stock issued and
outstanding immediately prior to the IPO shall automatically be converted,
without any action on the part of the holder thereof, into an aggregate of such
number of fully paid and non-assessable shares of Surviving Corporation Common
Stock equal to Duke's Corporation Interest multiplied by [____] shares of
Surviving Corporation Common Stock (equaling the aggregate number of shares of
Surviving Corporation Common Stock to be outstanding immediately after the IPO
(including shares issued to officers and employees of the Surviving Corporation
and the Company concurrently with the IPO and without giving effect to any
underwriters' over-allotment)).]
(g) The Board of Directors of the Surviving Corporation (who
shall hold office subject to the provisions of the Bylaws from the Effective
Time until the next annual meeting of the stockholders of the Surviving
Corporation and until their successors are elected and qualified) shall be the
directors of DEFS Corp. in office immediately prior to the Effective Time.
(h) All corporate acts, plans, policies, approvals and
authorizations of PGCSI, its stockholders, Board of Directors, committees
elected or appointed by the Board of Directors, officers and agents, which were
valid and effective immediately prior to the Effective Time shall be taken for
all purposes as the acts, plans, policies, approvals and authorizations of the
Surviving Corporation and shall be as effective and binding thereon as the same
were with respect to PGCSI.
ARTICLE IV
ACTIONS OF THE CORPORATIONS
Section 4.1 Execution of Documents. Each of the Constituent
Corporations hereby agrees that at any time, or from time to time, as and when
requested by the Surviving Corporation, or by its successors and assigns, it
will execute and deliver, or cause to be executed and delivered in its name by
its last acting officers or by the corresponding officers of the Surviving
Corporation, all such acknowledgments, assurances, conveyances, assignments,
transfers, deeds or other instruments, and will take or cause to be taken such
further or other action, as the Surviving Corporation, or its successors or
assigns, may deem necessary or desirable in order to evidence the transfer,
vesting or devolution to the Surviving Corporation of any property, right,
privilege or franchise pursuant to applicable law, or to vest or perfect in
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or confirm to the Surviving Corporation, its successors and assigns, title to
and possession of all the property, rights, privileges, powers, franchises and
interests as a result of the merger referred to herein pursuant to applicable
law, and otherwise to carry out the intent and purpose hereof.
Section 4.2 [Delivery of Certificates. Upon the end of the fifth day of
trading on the NYSE (excluding the pricing day), the Surviving Corporation shall
deliver to each of DENG and to PGCSI Parent, respectively, certificates
representing the number of shares of Surviving Corporation Common Stock held by
each, calculated in accordance with Sections 3.1(e) and (f) hereof.]
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IN WITNESS WHEREOF, each of the undersigned have caused this Agreement
to be duly executed and delivered on the date first set forth above.
▇▇▇▇▇▇▇▇ GAS COMPANY SHAREHOLDER, INC.
By:
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Name:
Title:
DUKE ENERGY FIELD SERVICES CORPORATION
By:
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Name:
Title:
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