Filed pursuant to Rule 424(b)(3)
Registration No. 333-82412
PROSPECTUS
$3,000,000,000
EL PASO CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
PURCHASE CONTRACTS
WARRANTS
UNITS
---------------------
EL PASO CAPITAL TRUST II
EL PASO CAPITAL TRUST III
TRUST PREFERRED SECURITIES
(GUARANTEED BY EL PASO CORPORATION)
El Paso Corporation may offer and sell in one or more offerings:
- unsecured debt securities consisting of senior notes and debentures and
subordinated notes and debentures and/or other unsecured evidences of
indebtedness in one or more series;
- shares of preferred stock, in one or more series, which may be
convertible or exchangeable for common stock or debt securities;
- shares of common stock;
- purchase contracts for the purchase or sale of our common stock,
preferred stock, debt securities, warrants or units, or for the purchase
or sale of securities of a third party, currencies or commodities;
- warrants to purchase our common stock, preferred stock, debt securities,
purchase contracts or units, or to purchase or sell securities of a third
party, currencies or commodities; and
- units consisting of any combination of our common stock, preferred stock,
debt securities, purchase contracts or warrants.
El Paso Capital Trust II and El Paso Capital Trust III, each a wholly owned
subsidiary of El Paso Corporation, may offer and sell in one or more offerings:
- trust preferred securities representing undivided beneficial interests in
the assets of each trust. As described in this document, we will provide
a limited guarantee of the payment by each trust of distributions on the
trust preferred securities and the payment upon liquidation and
redemption.
The aggregate initial offering price of the securities that we offer by
this prospectus will not exceed $3,000,000,000. We will offer the securities in
amounts, at prices and on terms to be determined by market conditions at the
time of our offerings.
We will provide the specific terms of the securities in supplements to this
prospectus. You should read this prospectus and the prospectus supplements
carefully before you invest in any of our securities. This prospectus may not be
used to consummate sales of our securities unless it is accompanied by a
prospectus supplement.
Our common stock is listed for trading on the New York Stock Exchange and
the Pacific Exchange under the symbol "EP."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is February 27, 2002
TABLE OF CONTENTS
PAGE
----
About this Prospectus....................................... i
Cautionary Statement Regarding Forward-Looking Statements... 1
Where You Can Find More Information......................... 2
El Paso Corporation......................................... 4
The Trusts.................................................. 6
Use of Proceeds............................................. 7
Ratio of Earnings to Fixed Charges.......................... 7
Description of the Debt Securities.......................... 8
Description of Capital Stock................................ 17
Description of Purchase Contracts........................... 24
Description of Warrants..................................... 25
Description of Units........................................ 26
Description of the Trust Preferred Securities............... 26
Description of the Trust Preferred Securities Guarantees.... 27
Relationship among the Trust Preferred Securities, the
Subordinated Debt Securities and the Guarantees........... 30
Plan of Distribution........................................ 32
Legal Matters............................................... 33
Experts..................................................... 33
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission (SEC) utilizing a "shelf" registration
process. Under this shelf process, we may sell different types of securities
described in this prospectus in one or more offerings up to a total offering
amount of $3,000,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering and the securities offered by us in that
offering. The prospectus supplement may also add, update or change information
in this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information."
In this prospectus, references to "El Paso," "we," "us" and "our" mean El
Paso Corporation, and references to an "El Paso Trust" or a "trust" mean El Paso
Capital Trust II and/or El Paso Capital Trust III.
i
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, management's plans, goals and objectives
for future operations and growth and markets for the stock 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 risk that we may have difficulty accessing capital on attractive
terms in the wake of recent events that have disrupted financial markets
and the availability and cost of capital;
- risks associated with possible judgments or sanctions in connection with
the energy crisis in California;
- 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;
- 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;
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- 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 Current Report on Form 8-K/A
filed May 17, 2001 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.
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 allow us to
omit some information included in the registration statement from this
prospectus.
In addition, we file reports and other information with the SEC under the
Securities Exchange Act of 1934. You may read and copy this information at the
SEC's public reference room, Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549.
You may also obtain copies of this information by mail at prescribed rates
from the SEC's public reference room, at the address above. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference room. The SEC
also maintains an Internet world wide web site that contains reports, proxy
statements and other information about issuers, including El Paso, that 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 115 Sansome
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.
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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;
- Audited combined financial statements as filed on Current Report on Form
8-K/A dated May 17, 2001;
- Current Reports on Form 10-Q for the quarters ended March 31, 2001, June
30, 2001 and September 30, 2001;
- 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, March 29, 2001, May 14, 2001, July 26, 2001, July 30,
2001, December 14, 2001, December 26, 2001, January 4, 2002, and January
11, 2002 and Current Reports on Form 8-K/A filed May 17, 2001, July 31,
2001 and January 8, 2002;
- Proxy Statement for the Annual Meeting of Shareholders held on May 21,
2001, filed March 27, 2001; and
- The description of our capital 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 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
http://www.sec.gov. 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.
3
EL PASO CORPORATION
BUSINESS
We are a global energy company with operations that extend from energy
production and extraction to power generation.
Our principal operations include:
- natural gas transportation, gathering, processing, and storage;
- energy-related commodities and products marketing;
- power generation;
- petroleum refining;
- chemicals production;
- energy infrastructure facility development and operation;
- natural gas and oil exploration and production; and
- coal mining.
Our Pipeline segment owns or has interests in approximately 60,000 miles of
interstate natural gas pipelines in the United States and internationally. In
the United States, our systems connect the nation's principal natural gas supply
regions to the five largest consuming regions in the United States: the Gulf
Coast, California, the Northeast, the Midwest, and the Southeast. These
operations represent one of the largest, and only, integrated coast-to-coast
mainline natural gas transmission system in the United States. Our U.S. pipeline
systems also own or have interests in over 425 billion cubic feet of storage
capacity used to provide a variety of services to our customers. Our
international pipeline operations include access from our U.S. based systems
into Canada and Mexico as well as interests in three major operating natural gas
transmission systems in Australia.
Our Merchant Energy segment is involved in a broad range of activities in
the energy marketplace including asset ownership, trading and risk management
and financial services. We are one of North America's largest wholesale energy
commodity marketers and traders, and buy, sell, and trade natural gas, power,
crude oil, refined products, coal, and other energy commodities in the United
States and internationally. We are also a significant non-utility owner of
electric generating capacity. Our refineries have the capacity to process
450,000 barrels of crude oil per day and produce a variety of gasolines and
other products. We also produce agricultural and industrial chemicals and
petrochemicals at seven facilities in the United States and Canada. Our coal
operations produce high-quality, bituminous coal with reserves in Kentucky,
Virginia, and West Virginia. Most recently, we have announced our expansion into
the liquefied natural gas business. The financial services businesses of
Merchant Energy invest in emerging businesses to facilitate growth in the U.S.
and Canadian energy markets.
Our Field Services segment provides natural gas gathering, products
extraction, fractionation, dehydration, purification, compression and intrastate
transmission services. These services include gathering of natural gas from more
than 15,000 natural gas wells with approximately 24,000 miles of natural gas
gathering and natural gas liquids pipelines, and 35 natural gas processing,
treating, and fractionation facilities located in some of the most prolific and
active production areas in the U.S., including the San Juan Basin, east and
south Texas, Louisiana, the Gulf of Mexico, and the Rocky Mountains. We conduct
our intrastate transmission operations through interests in six intrastate
systems, which serve a majority of the metropolitan areas and industrial load
centers in Texas as well as markets in Louisiana. We serve as the general
partner of El Paso Energy Partners, L.P., a publicly traded master limited
partnership. El Paso Energy Partners, L.P. provides natural gas and oil
gathering, transportation, storage, processing and other related services.
4
Our Production segment leases approximately 5 million net acres in 16
states, including Colorado, Kansas, Louisiana, New Mexico, Texas, Oklahoma,
Utah, Wyoming, and Arkansas, as well as the Gulf of Mexico. We also have
exploration and production rights in Australia, Brazil, Canada, Hungary,
Indonesia, and Turkey. During 2000, daily equivalent natural gas production
exceeded 1.6 billion cubic feet per day, and our reserves at December 31, 2000,
were approximately 6.4 trillion cubic feet of natural gas equivalents.
Our principal executive offices are located in the El Paso Building,
located at 1001 Louisiana Street, Houston, Texas 77002, and our telephone number
at that address is (713) 420-2600.
5
THE TRUSTS
El Paso Capital Trust II and El Paso Capital Trust III are statutory
business trusts created under Delaware law by filing a certificate of trust with
the Delaware Secretary of State. Each trust's business is defined in a
declaration of trust which we have executed, as sponsor for each of the trusts.
Officers of El Paso are the administrative trustees, as defined below, for each
of the trusts. Each declaration will be amended and restated before any trust
preferred securities are sold by that trust. Each declaration will also be
qualified as an indenture under the Trust Indenture Act of 1939, as amended.
Each trust exists for the exclusive purposes of:
- issuing and selling the trust preferred securities and the trust common
securities;
- investing the gross proceeds from the sale of the trust preferred
securities in subordinated debt securities issued by us; and
- engaging in only those other activities necessary or incidental to these
purposes.
We will, directly or indirectly, purchase trust common securities in an
aggregate liquidation amount equal to 3% of the total capital of an El Paso
Trust in connection with an offering of trust preferred securities by the trust.
Each trust's business and affairs will be conducted by its trustees. A
majority of the trustees of each trust will be administrative trustees and will
be persons who are employees or officers of or affiliated with us. One trustee
of each trust will be a financial institution that will be unaffiliated with us
and that will act as property trustee and as indenture trustee for purposes of
the Trust Indenture Act, as described in the applicable prospectus supplement.
In addition, unless the property trustees maintain a principal place of business
in the State of Delaware, and otherwise meet the requirements of applicable law,
one trustee of each trust, the Delaware trustee, will have its principal place
of business or reside in the State of Delaware. The administrative trustees and
the property trustees, together with the Delaware trustee, are referred to in
this document as the "trustees." Each trust's business and affairs will be
conducted by the administrative trustees appointed by us, as the direct or
indirect holder of all the trust common securities. Except in limited
circumstances, we, as the holder of the trust common securities, will be
entitled to appoint, remove or replace any of, or increase or reduce the number
of, the trustees of a trust. The declaration of each trust will govern the
duties and obligations of the trustees. We will pay and guarantee all fees and
expenses related to the trusts and the offering of trust securities.
The office of the Delaware Trustee for each El Paso Trust in the State of
Delaware is 1201 Market Street, Wilmington, Delaware 19801. The principal place
of business of each El Paso Trust will be c/o El Paso Corporation, El Paso
Building, 1001 Louisiana Street, Houston, Texas 77002, and its telephone number
is (713) 420-2600.
6
USE OF PROCEEDS
We will use the net proceeds we receive from the sale of the securities
offered by this prospectus for general corporate purposes unless we specify
otherwise in an applicable prospectus supplement. We may invest any funds we do
not require immediately for general corporate purposes in marketable securities
and short-term investments. The trusts will use all proceeds received from the
sale of the trust preferred securities to purchase subordinated debt securities
issued by us.
RATIO OF EARNINGS TO FIXED CHARGES
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------- -------------
1996 1997 1998 1999 2000 2000 2001
----- ----- ---- ----- ----- ----- ----
Ratio of Earnings to Fixed
Charges(1)........................ 2.63x 2.40x --(2) 1.16x 2.20x 2.11x --(2)
---------------
(1) During 1998, 1999 and 2001, we incurred charges related to our natural gas
and oil producing activities. We also completed several significant mergers,
including those with Sonat Inc. in 1999 and The Coastal Corporation in 2001.
Following these mergers, we incurred significant merger-related charges. For
a further discussion of these charges and their impact on our earnings in
these years, please see our filings with the Securities and Exchange
Commission incorporated by reference into this prospectus.
(2) Earnings were inadequate to cover fixed charges by $1 million in 1998 and
$432 million for the nine months ended September 30, 2001.
For purposes of computing these ratios, earnings means income (loss) from
continuing operations before:
- income taxes;
- minority interest in majority-owned subsidiaries;
- interest expense, not including interest on rate refunds;
- amortization of debt costs;
- that portion of rental expense that we believe to represent an interest
factor; and
- adjustment to equity earnings to reflect actual distributions from equity
investments.
Fixed charges means the sum of the following:
- interest cost, excluding interest on rate refunds;
- amortization of debt costs;
- that portion of rental expense that we believe to represent an interest
factor;
- the pre-tax preferred stock dividend requirements of majority-owned
subsidiaries; and
- minority interest in majority-owned subsidiaries.
7
DESCRIPTION OF THE DEBT SECURITIES
Any debt securities we offer will be our direct, unsecured general
obligations. The debt securities will be either senior debt securities or
subordinated debt securities and will be issued under one or more separate
indentures between us and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as indenture trustee. Senior debt securities will be issued
under a "senior indenture" and subordinated debt securities will be issued under
a "subordinated indenture." Together the senior indenture and the subordinated
indenture are called "indentures."
We have summarized selected provisions of the indentures below. The
following description is a summary of the material provisions of the indentures.
It does not restate those agreements in their entirety. We urge you to read each
of the indentures because each one, and not this description, defines your
rights as holders of the debt securities. A senior indenture and a subordinated
indenture between us and JPMorgan Chase Bank, as trustee, have been filed as
exhibits to the registration statement.
GENERAL
The debt securities will be our direct, unsecured obligations. The senior
debt securities will rank equally with all of our other senior and
unsubordinated debt. The subordinated debt securities will have a junior
position to all of our senior debt securities.
If El Paso Capital Trust II or El Paso Capital Trust III issues trust
preferred securities, we will also issue subordinated debt securities to the
trust or a trustee of either trust. If the trusts are subsequently dissolved
upon the occurrence of the events described in the prospectus supplement
relating to the trust preferred securities, the trusts or trustees may
distribute these subordinated debt securities ratably to the holders of trust
preferred securities.
A prospectus supplement and a supplemental indenture relating to any series
of debt securities being offered will include specific terms relating to the
offered debt securities. These terms will include some or all of the following:
- the title and type of the debt securities;
- the total principal amount of the debt securities and the currency, if
other than U.S. dollars, in which such notes are denominated;
- the percentage of the principal amount at which the debt securities will
be issued and any payments due if the maturity of the debt securities is
accelerated;
- the dates on which the principal of the debt securities will be payable
and the terms on which any such maturity date may be extended;
- the interest rate which the debt securities will bear and the interest
payment dates for the debt securities;
- the form of the subordinated debt securities we will issue to the trusts
or a trustee if the trusts issue trust preferred securities;
- in the case of subordinated debt securities issued to the trusts or
trustees, the right to extend payment periods and the duration of that
extension;
- any provisions relating to the convertibility of exchangability of the
debt securities for other debt securities or equity securities;
- any optional redemption periods;
- any sinking fund or other provisions that would obligate us to repurchase
or otherwise redeem some or all of the debt securities;
- any changes to or additional events of defaults or covenants;
- any special tax implications of the debt securities, including provisions
for original issue discount securities, if offered;
8
- restrictions on the declaration of dividends or requiring the maintenance
of any asset ratio or the creation or maintenance of reserves; and
- any other terms of the debt securities.
Neither of the indentures limits the amount of debt securities that may be
issued. Each indenture allows debt securities to be issued up to the principal
amount that we may authorize and may be in any currency or currency unit we
designate.
Debt securities of a series may be issued in registered, bearer, coupon or
global form.
DENOMINATIONS
The prospectus supplement for each issuance of debt securities will state
whether the securities will be issued in registered form of $1,000 each or
multiples of $1,000 or bearer form of $5,000 each.
SUBORDINATION
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will generally be subordinated
and junior in right of payment to the prior payment in full of all senior debt
securities. The subordinated indenture states that no payment of principal,
interest and any premium on the subordinated debt securities may be made in the
event:
- of any insolvency, bankruptcy or similar proceeding involving us or our
property, or
- we fail to pay the principal, interest, any premium or any other amounts
on any senior debt when due.
The subordinated indenture will not limit the amount of senior debt that we
may incur.
Senior debt includes all notes or other unsecured evidences of
indebtedness, including guarantees given by us, for money borrowed by us, not
expressly subordinate or junior in right of payment to any of our other
indebtedness.
CONSOLIDATION, MERGER OR SALE
Each indenture generally permits a consolidation or merger between us and
another corporation. They also permit us to sell all or substantially all of our
property and assets. If this occurs, the remaining or acquiring corporation will
assume all of our responsibilities and liabilities under the indentures,
including the payment of all amounts due on the debt securities and performance
of the covenants in the indentures. However, we will consolidate or merge with
or into any other corporation or sell all or substantially all of our assets
only according to the terms and conditions of the indentures. The remaining or
acquiring corporation will be substituted for us in the indentures with the same
effect as if it had been an original party to the indentures. After that the
successor corporation may exercise our rights and powers under any indenture, in
our name or in its own name. Any act or proceeding required or permitted to be
done by our board or any of our officers may be done by the board or officers of
the successor corporation. If we sell all or substantially all of our assets, we
will be released from all our liabilities and obligations under any indenture
and under the debt securities.
MODIFICATION OF INDENTURES
Under each indenture our rights and obligations and the rights of the
holders may be modified with the consent of the holders of a majority in
aggregate principal amount of the outstanding debt securities of each series
affected by the modification. No modification of the principal or interest
payment terms, and no modification reducing the percentage required for
modifications, is effective against any holder without its consent.
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EVENTS OF DEFAULT
"Event of default" when used in an indenture, will mean any of the
following:
- failure to pay the principal of or any premium on any debt security when
due;
- failure to pay interest on any debt security for 30 days;
- failure to perform any other covenant in the indenture that continues for
60 days after being given written notice;
- certain events in our bankruptcy, insolvency or reorganization; or
- any other event of default included in any indenture or supplemental
indenture.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under an indenture. The trustee may withhold notice to the
holders of debt securities of any default, except in the payment of principal or
interest, if it considers such withholding of notice to be in the best interests
of the holders.
If an event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If
this happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of that series can void the
declaration.
Other than its duties in case of a default, a trustee is not obligated to
exercise any of its rights or powers under any indenture at the request, order
or direction of any holders, unless the holders offer the trustee reasonable
indemnity. If they provide this reasonable indemnification, the holders of a
majority in principal amount of any series of debt securities may direct the
time, method and place of conducting any proceeding or any remedy available to
the trustee, or exercising any power conferred upon the trustee, for any series
of debt securities.
COVENANTS
General
Under the indentures, we will:
- pay the principal of, and interest and any premium on, the debt
securities when due;
- maintain a place of payment;
- deliver a report to the trustee at the end of each fiscal year reviewing
our obligations under the indentures; and
- deposit sufficient funds with any paying agent on or before the due date
for any principal, interest or premium.
The senior indenture provides that we will not, nor will we permit any
restricted subsidiary to, create, assume, incur or suffer to exist any lien upon
any principal property, whether owned or leased on the date of the senior
indenture or thereafter acquired, to secure any of our debt or any other person
(other than the senior debt securities issued under the senior indenture),
without causing all of the senior debt securities outstanding under the senior
indenture to be secured equally and ratably with, or prior to, the new debt so
long the new debt is so secured. This restriction does not prohibit us from
creating the following:
(i) any lien upon any of our property or assets or any restricted
subsidiary in existence on the date of the senior indenture or created
pursuant to an "after-acquired property" clause or similar term
10
in existence on the date of the senior indenture or any mortgage, pledge
agreement, security agreement or other similar instrument in existence on
the date of the senior indenture;
(ii) any lien upon any property or assets created at the time of
acquisition of such property or assets by or any of our restricted
subsidiaries or within one year after such time to secure all or a portion
of the purchase price for such property or assets or debt incurred to
finance such purchase price, whether such debt was incurred prior to, at
the time of or within one year of such acquisition;
(iii) any lien upon any property or assets existing on the property at
the time of the acquisition of the property by us or any of our restricted
subsidiaries (whether or not the obligations secured are assumed by us or
any of our restricted subsidiaries);
(iv) any lien upon any property or assets of a person existing on the
property at the time that person becomes a restricted subsidiary by
acquisition, merger or otherwise;
(v) the assumption by us or any of our restricted subsidiaries of
obligations secured by any lien existing at the time of the acquisition by
us or any of our restricted subsidiaries of the property or assets subject
to such lien or at the time of the acquisition of the person which owns
that property or assets;
(vi) any lien on property to secure all or part of the cost of
construction or improvements on the property or to secure debt incurred
prior to, at the time of, or within one year after completion of such
construction or making of such improvements, to provide funds for any such
purpose;
(vii) any lien on any oil, gas, mineral and processing and other plant
properties to secure the payment of costs, expenses or liabilities incurred
under any lease or grant or operating or other similar agreement in
connection with or incident to the exploration, development, maintenance or
operation of such properties;
(viii) any lien arising from or in connection with a conveyance by us
or any of our restricted subsidiaries of any production payment with
respect to oil, gas, natural gas, carbon dioxide, sulphur, helium, coal,
metals, minerals, steam, timber or other natural resources;
(ix) any lien in favor of us or any of our restricted subsidiaries;
(x) any lien created or assumed by us or any of our restricted
subsidiaries in connection with the issuance of debt the interest on which
is excludable from gross income of the holder of such debt pursuant to the
Internal Revenue Code of 1986, as amended, or any successor statute, for
the purpose of financing, in whole or in part, the acquisition or
construction of property or assets to be used by us or any of our
subsidiaries;
(xi) any lien upon property or assets of any foreign restricted
subsidiary to secure debt of that foreign restricted subsidiary;
(xii) permitted liens (as defined below);
(xiii) any lien upon any additions, improvements, replacements,
repairs, fixtures, appurtenances or component parts thereof attaching to or
required to be attached to property or assets pursuant to the terms of any
mortgage, pledge agreement, security agreement or other similar instrument,
creating a lien upon such property or assets permitted by clauses (i)
through (xii), inclusive, above; or
(xiv) any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancing, refundings or
replacements) of any lien, in whole or in part, that is referred to in
clauses (i) through (xiii), inclusive, above, or of any debt secured
thereby; provided, however, that the principal amount of debt secured shall
not exceed the greater of the principal amount of debt so secured at the
time of such extension, renewal, refinancing, refunding or replacement and
the original principal amount of debt so secured (plus in each case the
aggregate amount of premiums, other payments, costs and expenses required
to be paid or incurred in connection with such extension, renewal,
refinancing, refunding or replacement); provided further, however, that
such extension,
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renewal, refinancing, refunding or replacement shall be limited to all or a
part of the property (including improvements, alterations and repairs on
such property) subject to the encumbrance so extended, renewed, refinanced,
refunded or replaced (plus improvements, alterations and repairs on such
property).
Notwithstanding the foregoing, under the senior indenture, we may, and may
permit any restricted subsidiary to, create, assume, incur, or suffer to exist
any lien upon any principal property to secure our debt or any person (other
than the senior debt securities) that is not excepted by clauses (i) through
(xiv) above without securing the senior debt securities issued under the senior
indenture, provided that the aggregate principal amount of all debt then
outstanding secured by such lien and all similar liens, together with all net
sale proceeds from sale-leaseback transactions (excluding sale-leaseback
transactions permitted by clauses (i) through (iv), inclusive, of the first
paragraph of the restriction on sale-leasebacks covenant described below) does
not exceed 15% of consolidated net tangible assets.
The senior indenture also provides that we will not, nor will we permit any
restricted subsidiary to, engage in a sale-leaseback transaction, unless: (i)
such sale-leaseback transaction occurs within one year from the date of
acquisition of the principal property subject thereto or the date of the
completion of construction or commencement of full operations on such principal
property, whichever is later; (ii) the sale-leaseback transaction involves a
lease for a period, including renewals, of not more than three years; (iii) we
or any of our restricted subsidiaries would be entitled to incur debt secured by
a lien on the principal property subject thereto in a principal amount equal to
or exceeding the net sale proceeds from such sale-leaseback transaction without
securing the senior debt securities; or (iv) we or any of our restricted
subsidiaries, within a one-year period after such sale-leaseback transaction,
applies or causes to be applied an amount not less than the net sale proceeds
from such sale-leaseback transaction to (A) the repayment, redemption or
retirement of funded debt of us or any such restricted subsidiary, or (B)
investment in another principal property.
Notwithstanding the foregoing, under the senior indenture we may, and may
permit any restricted subsidiary to, effect any sale-leaseback transaction that
is not excepted by clauses (i) through (iv), inclusive, of the above paragraph,
provided that the net sale proceeds from such sale-leaseback transaction,
together with the aggregate principal amount of outstanding debt (other than the
senior debt securities) secured by liens upon principal properties not excepted
by clauses (i) through (xiv), inclusive, of the first paragraph of the
limitation on liens covenant described above, do not exceed 15% of the
consolidated net tangible assets.
Subordinated Indenture Covenants
If we issue subordinated debt securities to an El Paso Trust in connection
with the issuance of trust securities by the El Paso Trust and
- an event of default under the subordinated indenture has occurred,
- we are in default of our payment obligations under the related trust
guarantee or the guarantee of the trust common securities, or
- we have elected to defer payments of interest on the subordinated debt
securities by extending the interest payment period as provided in the
subordinated indenture, and the interest payment period, or any extension
of it, is continuing, then
we will be subject to restrictions regarding the declaration or payment of
dividends on, and the making of guarantee payments with respect to, any of our
capital stock, and the making of any payment of interest, principal or premium,
if any, on, or the repayment, repurchase or redemption of, any debt securities
(including guarantees) issued by us which rank the same as or junior to the
subordinated debt securities. These restrictions will be more fully described in
the prospectus supplement applicable to the particular series of subordinated
debt securities issued to a trust.
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If we issue subordinated debt securities to an El Paso Trust in connection
with the El Paso Trust's issuance of trust securities, for so long as such trust
securities remain outstanding, we will covenant in the declaration, the
guarantees or the supplemental indenture to the subordinated indenture with
respect to such El Paso Trust:
- to directly or indirectly maintain 100% ownership of the common
securities of the El Paso Trust; however, any permitted successor to us
under the subordinated indenture may succeed to our ownership of the
trust common securities and
- not to voluntarily terminate, wind-up or liquidate the El Paso Trust,
except in connection with
(i) the distribution of subordinated debt securities to the holders of
trust securities in liquidation of the trust,
(ii) the redemption of all of the trust securities of the trust, or
(iii) certain mergers, consolidations or amalgamations, each as
permitted by the declaration of the trust.
We will also covenant to use our commercially reasonable efforts, consistent
with the terms and provisions of the declaration of the El Paso Trust, to cause
the trust to remain classified as a grantor trust and not taxable as a
corporation for United States federal income tax purposes.
Definitions
The following are definitions of some terms used in the above covenant
descriptions:
"Consolidated net tangible assets" means, at any date of
determination, the total amount of assets after deducting (i) all current
liabilities (excluding (A) any current liabilities that by their terms are
extendable or renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is being
computed, and (B) current maturities of long-term debt), and (ii) the value
(net of any applicable reserves) of all goodwill, trade names, trademarks,
patents and other like intangible assets, all as set forth on our
consolidated balance sheet and our consolidated subsidiaries for our most
recently completed fiscal quarter, prepared in accordance with generally
accepted accounting principles.
"Debt" means any obligation created or assumed by any person to repay
money borrowed and any purchase money obligation created or assumed by such
person.
"Funded debt" means all debt maturing one year or more from the date
of the creation thereof, all debt directly or indirectly renewable or
extendible, at the option of the debtor, by its terms or by the terms of
any instrument or agreement relating thereto, to a date one year or more
from the date of the creation thereof, and all debt under a revolving
credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more.
"Lien" means any mortgage, pledge, security interest, charge, lien or
other encumbrance of any kind, whether or not filed, recorded or perfected
under applicable law.
"Permitted liens" means (i) liens upon rights-of-way for pipeline
purposes; (ii) any governmental lien, mechanics', materialmen's, carriers'
or similar lien incurred in the ordinary course of business which is not
yet due or which is being contested in good faith by appropriate
proceedings and any undetermined lien which is incidental to construction;
(iii) the right reserved to, or vested in, any municipality or public
authority by the terms of any right, power, franchise, grant, license,
permit or by any provision of law, to purchase or recapture or to designate
a purchaser of, any property; (iv) liens of taxes and assessments which are
(a) for the then current year, (b) not at the time delinquent, or (c)
delinquent but the validity of which is being contested at the time by us
or any subsidiary in good faith; (v) liens of, or to secure performance of,
leases; (vi) any lien upon, or deposits of, any assets in favor of any
surety company or clerk of court for the purpose of obtaining
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indemnity or stay of judicial proceedings; (vii) any lien upon property or
assets acquired or sold by us or any restricted subsidiary resulting from
the exercise of any rights arising out of defaults on receivables; (viii)
any lien incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance, temporary disability,
social security, retiree health or similar laws or regulations or to secure
obligations imposed by statute or governmental regulations; (ix) any lien
upon any property or assets in accordance with customary banking practice
to secure any debt incurred by us or any restricted subsidiary in
connection with the exporting of goods to, or between, or the marketing of
goods in, or the importing of goods from, foreign countries; or (x) any
lien in favor of the U.S. or any state thereof, or any other country, or
any political subdivision of any of the foregoing, to secure partial,
progress, advance, or other payments pursuant to any contract or statute,
or any lien securing industrial development, pollution control, or similar
revenue bonds.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, other entity, unincorporated organization, or government or any
agency or political subdivision thereof.
"Principal property" means (a) any pipeline assets owned by us or by
any of our subsidiaries, including any related facilities employed in the
transportation, distribution or marketing of natural gas, that are located
in the U.S. or Canada, and (b) any processing or manufacturing plant owned
or leased by us or any of our subsidiaries that is located within the U.S.
or Canada, except, in the case of either clause (a) or (b), any such assets
or plant which, in the opinion our board of directors, is not material in
relation to our activities and our subsidiaries as a whole.
"Restricted subsidiary" means any of our subsidiaries owning or
leasing any principal property.
"Sale-leaseback transaction" means the sale or transfer by us or any
of our restricted subsidiaries of any principal property to a person (other
than us or a subsidiary) and the taking back by us or any of our restricted
subsidiaries, as the case may be, of a lease of such principal property.
PAYMENT AND TRANSFER
Unless we specify otherwise in a prospectus supplement, we will pay
principal, interest and any premium on the debt securities, and they may be
surrendered for payment or transferred, at the offices of the trustee. We will
make payment on registered securities by check mailed to the persons in whose
names the debt securities are registered or by transfer to an account maintained
by the registered holder on days specified in the indentures or any prospectus
supplement. If we make debt securities payments in other forms, we will specify
the form and place in a prospectus supplement.
We will maintain a corporate trust office of the trustee or another office
or agency for the purpose of transferring or exchanging fully registered
securities, without the payment of any service charge except for any tax or
governmental charge.
GLOBAL SECURITIES
We may issue one or more series of the debt securities as permanent global
debt securities deposited with a depositary. Unless otherwise indicated in the
prospectus supplement, the following is a summary of the depository arrangements
applicable to debt securities issued in permanent global form and for which The
Depositary Trust Company (DTC) acts as depositary.
Each global debt security will be deposited with, or on behalf of, DTC, as
depositary, and registered in the name of Cede & Co., as DTC's nominee, or such
other name as may be requested by an authorized representative of DTC. Except
under the limited circumstances described below, global debt securities are not
exchangeable for definitive certificated debt securities.
Ownership of beneficial interests in a global debt security is limited to
participants that have accounts with DTC, or persons that may hold interests
through those participants. In addition, ownership of beneficial interests by
participants in a global debt security will be evidenced only by, and the
transfer of
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that ownership interest will be effected only through, records maintained by DTC
for a global debt security. Ownership of beneficial interests in a global debt
security by persons that hold through participants will be evidenced only by,
and the transfer of that ownership interest within that participant will be
effected only through, records maintained by that participant. DTC has no
knowledge of the actual beneficial owners of the debt securities. Beneficial
owners will not receive written confirmation from DTC of their purchase, but
beneficial owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their holdings,
from the participants through which the beneficial owners entered the
transaction. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in a global debt
security.
We will make payment of principal of, and interest on, debt securities
represented by a global debt security registered in the name of or held by DTC
or its nominee will be made to DTC or its nominee, as the case may be, as the
registered owner and holder of the global debt security representing those debt
securities. DTC has advised us that upon receipt of any payment of principal of,
or interest on, a global debt security, DTC will immediately credit
participants' accounts in amounts proportionate to their respective beneficial
interests in the principal amount of that global debt security as shown in the
records of DTC. Payments by participants to owners of beneficial interests in a
global debt security held through those participants will be governed by
standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the sole responsibility of those participants, subject to any
statutory or regulatory requirements that may be in effect from time to time.
Neither we, any trustee nor any of our respective agents, will be
responsible for any aspect of the records of DTC, any nominee or any participant
relating to, or payments made on account of, beneficial interests in a permanent
global debt security or for maintaining, supervising or reviewing any of the
records of DTC, any nominee or any participant relating to such beneficial
interests.
A global debt security is exchangeable for definitive debt securities
registered in the name of, and a transfer of a global debt security may be
registered to, any person other than DTC or its nominee, only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for that global debt security or at any time DTC ceases to be registered
under the Exchange Act;
- we determine in our discretion that the global debt security shall be
exchangeable for definitive debt securities in registered form; or
- there shall have occurred and be continuing an event of default or an
event which, with notice or the lapse of time or both, would constitute
an event of default under the debt securities.
Any global debt security that is exchangeable pursuant to the preceding
sentence will be exchangeable in whole for definitive debt securities in
registered form, of like tenor and of an equal aggregate principal amount as the
global debt security, in denominations specified in the applicable prospectus
supplement, if other than $1,000 and integral multiples of $1,000. The
definitive debt securities will be registered by the registrar in the name or
names instructed by DTC. We expect that these instructions may be based upon
directions received by DTC from its participants with respect to ownership of
beneficial interests in the global debt security.
Except as provided above, owners of the beneficial interests in a global
debt security will not be entitled to receive physical delivery of debt
securities in definitive form and will not be considered the holders of debt
securities for any purpose under the indentures. No global debt security shall
be exchangeable except for another global debt security of like denomination and
tenor to be registered in the name of DTC or its nominee. Accordingly, each
person owning a beneficial interest in a global debt security must rely on the
procedures of DTC and, if that person is not a participant, on the procedures of
the participant through which that person owns its interest, to exercise any
rights of a holder under the global debt security or the indentures.
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We understand that, under DTC's usual procedures, in the event that we
request any action of holders, or an owner of a beneficial interest in a global
debt security desires to give or take any action that a holder is entitled to
give or take under the debt securities or the indentures, DTC would authorize
the participants holding the relevant beneficial interests to give or take that
action, and those participants would authorize beneficial owners owning through
those participants to give or take that action or would otherwise act upon the
instructions of beneficial owners owning through them.
DTC has advised us that DTC is a limited-purpose trust company organized
under the laws of the State of New York, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered under the Exchange Act. DTC holds
securities that its participants deposit with DTC. DTC also facilitates the
settlement of securities transactions among its participants in those securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC is owned by a number
of its participants and by the New York Stock Exchange, Inc., the American Stock
Exchange LLC and the National Association of Securities Dealers, Inc. Access to
DTC's book-entry system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the SEC.
DTC may discontinue providing its services as securities depositary at any
time by giving reasonable notice to us or the Trustee, as agent. Under such
circumstances, we would attempt to obtain a successor securities depositary. If
we were unable to obtain a successor depositary, we would issue debt securities
in definitive form.
The information in this section concerning DTC and DTC's book entry system
has been obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy of such information.
DEFEASANCE
We will be discharged from our obligations on the debt securities of any
series at any time if we deposit with the trustee sufficient cash or government
securities to pay the principal, interest, any premium and any other sums due to
the stated maturity date or a redemption date of the debt securities of the
series. If this happens, the holders of the debt securities of the series will
not be entitled to the benefits of the indenture except for registration of
transfer and exchange of debt securities and replacement of lost, stolen or
mutilated debt securities.
Under U.S. federal income tax laws as of the date of this prospectus, a
discharge may be treated as an exchange of the related debt securities. Each
holder might be required to recognize gain or loss equal to the difference
between the holder's cost or other tax basis for the debt securities and the
value of the holder's interest in the trust. Holders might be required to
include as income a different amount than would be includable without the
discharge. Prospective investors should seek tax advice to determine their
particular consequences of a discharge, including the applicability and effect
of tax laws other than the U.S. federal income tax laws.
GOVERNING LAW
Each indenture and the debt securities will be governed by and construed in
accordance with the laws of the State of New York.
NOTICES
Notices to holders of debt securities will be given by mail to the
addresses of such holders as they appear in the security register.
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DESCRIPTION OF CAPITAL STOCK
The statements under this caption are brief summaries and are subject to,
and are qualified in their entirety by reference to, the more complete
descriptions contained in (1) our Restated Certificate of Incorporation, as
amended (the "charter"), and the Amended and Restated Shareholder Rights
Agreement, dated as of January 20, 1999, between us and EquiServe Trust Company,
N.A., as rights agent (the "shareholder rights agreement"), copies of which are
available upon request to El Paso, and (2) the certificate of designation
relating to each series of preferred stock, which will be filed with the SEC at,
or prior to, the time of the offering of such series of preferred stock.
GENERAL
We are currently authorized by our charter to issue up to 750,000,000
shares of common stock and up to 50,000,000 shares of preferred stock. As of
January 31, 2002, there were 531,957,912 shares of common stock, 200,000 shares
of Series B Mandatorily Convertible Single Reset Preferred Stock and 190,000
shares of Series C Mandatorily Convertible Single Reset Preferred Stock issued
and outstanding.
COMMON STOCK
We are currently authorized by our charter to issue up to 750,000,000
shares of common stock. The holders of common stock are entitled to one vote for
each share held of record on all matters submitted to a vote of stockholders.
Subject to preferences that may be applicable to any outstanding preferred
stock, holders of common stock are entitled to receive ratably dividends which
are declared by our board of directors out of funds legally available for such a
purpose. In the event of our liquidation, dissolution, or winding up, holders of
common stock are entitled to share ratably in all assets remaining after payment
of liabilities and liquidation preference of any outstanding preferred stock.
Holders of common stock have no preemptive rights and have no rights to convert
their common stock into any other securities. The common stock is not
redeemable. All of the outstanding shares of common stock are, and the common
stock offered by this offering circular will be, fully paid and nonassessable
upon issuance against full payment of the purchase price.
EquiServe Trust Company, N.A. is the transfer agent and registrar for our
common stock.
PREFERRED STOCK
Our board of directors, without any further action by our stockholders, is
authorized to issue up to 50,000,000 shares of preferred stock and to divide the
preferred stock into one or more series. The Board may fix by resolution or
resolutions any of the designations, powers, preferences and rights, and the
qualifications, limitations, or restrictions of the shares of each such series,
including, but not limited to, dividend rates, conversion rights, voting rights,
terms of redemption and liquidation preferences, and the number of shares
constituting each such series. The issuance of preferred stock may have the
effect of delaying, deterring or preventing a change in control of El Paso.
Preferred stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The specific terms of a
particular series of preferred stock will be described in the certificate of
designation relating to that series. The description of preferred stock set
forth below does not purport to be complete and is qualified in its entirety by
reference to the certificate of designation relating to the particular series of
preferred stock.
The designations, powers, preferences and rights, and the qualifications,
limitations, or restrictions of preferred stock of each series will be fixed by
the certificate of designation relating to such series. The certificate of
designation relating to each series will specify the terms of the preferred
stock as follows:
- The number of shares to constitute each series and the distinctive
designation of the shares;
- The annual dividend rate, if any, on shares of each series, whether such
rate is fixed or variable or both, the date or dates from which dividends
will begin to accrue or accumulate and whether dividends will be
cumulative;
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- The purchase price and terms and conditions of the shares of each series,
including the time during which shares of each series may be redeemed and
any accumulated dividends that the holders of shares of each series shall
be entitled to receive upon the redemption of the shares;
- The liquidation preference, if any, and any accumulated dividends
thereon, that the holders of shares of each series shall be entitled to
receive upon the liquidation, dissolution or winding up of the affairs of
El Paso;
- Whether or not the shares of each series will be subject to operation of
a retirement or sinking fund, and, if so, the extent and manner in which
any such fund shall be applied to the purchase or redemption of the
shares of such series for retirement or for other corporate purposes and
the terms and provisions relating to the operation of such fund;
- The terms and conditions, if any, on which the shares of each series
shall be convertible into, or exchangeable for, debt securities, shares
of any other class or classes of our capital stock, or any series of any
other class or classes, or of any other series of the same class,
including the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same;
- The voting rights, if any, on the shares of each series; and
- Any or all other preferences and relative, participating, operational, or
other special rights, qualifications, limitations, or restrictions on
each series.
As of the date of this prospectus, 200,000 shares of Series B Mandatorily
Convertible Single Reset Preferred Stock and 190,000 shares of Series C
Mandatorily Convertible Single Reset Preferred Stock are outstanding. Pursuant
to the shareholder rights agreement, our board of directors has designated
7,500,000 shares of Series A preferred stock. A summary description of each of
the shareholder rights agreement and the Series A preferred stock, the Series B
Mandatorily Convertible Single Reset Preferred Stock and the Series C
Mandatorily Convertible Single Reset Preferred Stock is set forth below. You
should refer to the full text of the shareholder rights agreement and the
certificate of designation for each series of preferred stock for more complete
descriptions.
SHAREHOLDER RIGHTS AGREEMENT
In July 1992, the board of directors of El Paso Natural Gas Company, our
predecessor ("EPG"), declared a dividend distribution of one preferred stock
purchase right (an "EPG right") for each share of EPG's common stock par value
$3.00 per share, then outstanding. In July 1997, EPG's board amended EPG's
shareholder rights agreement pursuant to which the EPG rights were issued. All
shares of EPG common stock issued subsequent to July 1992 also included these
EPG rights. In connection with the holding company reorganization effected as of
August 1, 1998, each one-half EPG right then associated with each outstanding
share of EPG common stock was converted into one preferred stock purchase right
(a "right") associated with each share of our common stock. All shares of our
common stock issued after August 1, 1998 will also include a right. Under
conditions specified in the shareholder rights agreement, each right may be
exercised to purchase from us one two-hundredths of a share of a series of our
preferred stock, designated as Series A junior participating preferred stock,
par value $.01 per share (the "Series A preferred stock"), at a price of $75 per
one two-hundredths of a share, subject to adjustment. In January 1999, the
shareholder rights agreement was amended and restated.
Our charter provides that the holders of a whole share of Series A
preferred stock are entitled to 200 votes per share on all matters submitted to
a vote of our stockholders subject to adjustment. In addition, during any period
that dividends on the Series A preferred stock are in arrears in an amount equal
to six quarterly dividend payments, the holders of Series A preferred stock will
have the right to vote together as a class to elect two of our directors.
The rights will separate from the common stock and will become exercisable
on the earlier of (1) the first date of the public announcement that a person or
group has acquired or obtained the right to acquire beneficial ownership of 15%
or more of the voting power of all of our outstanding voting securities and
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(2) 10 business days (or such later date as the board may determine) after the
commencement of, or announcement of an intention to commence, a tender or
exchange offer, that would result in a person or group beneficially owning 15%
or more of our voting securities. If, after the rights become exercisable, we
are involved in a merger or other business combination transaction in which our
common stock is exchanged or changed, or it sells 50% or more of its assets or
earning power, each holder of a right will have the right to purchase at the
right's then-current exercise price, common stock of the acquiring company which
at the time of such transaction will have a market value of two times the
exercise price of the right. If a person becomes the beneficial owner of
securities having 15% or more of the voting power of all of our then-outstanding
voting securities (except pursuant to a "permitted offer"), or if, during any
period of such ownership, there shall be any reclassification of securities or
recapitalization of us, or any merger or consolidation of us with any of our
subsidiaries or any other transaction or series of transactions which has the
effect, directly or indirectly, of increasing by more than 1% the proportionate
share of the outstanding shares of any class of our equity securities or any of
our subsidiaries which is directly or indirectly owned by such person, then for
the next 60 days each right not owned by such person will entitle the holder of
the right to purchase, at the right's then-current exercise price, shares of
common stock or, in the discretion of the board, the number of one
two-hundredths of a shares of series A preferred stock (or in circumstances
specified in the shareholder rights agreement, other of our equity securities
with at least the same economic value as the common stock) having a market value
of twice the right's then-current exercise price. The rights, which have no
voting rights, expire no later than 5:00 p.m., New York time on July 7, 2002. A
"permitted offer" is a tender or exchange offer for all outstanding shares of
common stock which is at a price and on terms determined, prior to the purchase
of shares in such offer, by a majority of the disinterested directors to be
adequate and otherwise in the best interests of us and our stockholders (other
than the person and its affiliates making the offer), taking into account all
factors that such disinterested directors deem relevant. "Disinterested
directors" are directors who are neither our officers nor the officers an
acquiring company or affiliate, associate or representative of such a company,
or a person directly or indirectly proposed or nominated as director by a
transaction person (as defined in the shareholder rights agreement). We may
redeem the rights under circumstances specified in the shareholder rights
agreement, prior to their expiration date at a purchase price of $.01 per right.
It is possible that the existence of the rights may have the effect of delaying,
deterring or preventing our takeover.
Each share of our common stock issued upon conversion of the debentures
will include a right issued under the shareholder rights agreement.
EL PASO SERIES B MANDATORILY CONVERTIBLE SINGLE RESET PREFERRED STOCK
In March 2000, we issued 200,000 shares of El Paso Series B Mandatorily
Convertible Single Reset Preferred Stock having an initial aggregate liquidation
preference of $1,000,000,000 in connection with the issuance by Limestone
Electron Trust and Limestone Electron, Inc. of $1,000,000,000 aggregate
principal amount of notes (the "Limestone Notes"). The shares of the El Paso
Series B Mandatorily Convertible Single Reset Preferred Stock were deposited
into a trust established for the benefit of the holders of the Limestone Notes.
We are the beneficial owner of the trust. The preferred shares are to be sold by
the trust only if:
- the Limestone Notes are accelerated as a result of an event of default,
including, in addition to various defaults under the documentation
relating to the transactions pursuant to which the Limestone Notes were
issued, payment defaults by El Paso under debt obligations specified in
the documentation relating to the transactions;
- the funds necessary to pay the Limestone Notes upon maturity are not
timely deposited; or
- our credit ratings fall below investment grade and our common stock price
for ten consecutive trading days falls below $27.07, subject to certain
adjustments.
The date that the preferred shares are sold by the trust, or under certain
circumstances the date of a failed remarketing of the preferred shares, is the
"Rate Reset Date," and the market price of El Paso
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common stock on the day such sale is priced or the date of such failed
remarketing is the "Reset Price," which price is subject to certain antidilution
adjustments. If the Limestone Notes, which mature on March 15, 2003, are timely
repaid in full, we expect the El Paso Series B Mandatorily Convertible Single
Reset Preferred Stock will be retired and canceled.
No dividends are payable on the El Paso Series B Mandatorily Convertible
Single Reset Preferred Stock prior to the Rate Reset Date. After the Rate Reset
Date, dividends are payable at a rate equal to 7% per annum plus an amount which
is intended to approximate the dividend yield on the El Paso common stock as of
the Rate Reset Date. Such dividends are payable quarterly in arrears and are
cumulative. The amount payable on shares of El Paso Series B Mandatorily
Convertible Single Reset Preferred Stock in the event of a liquidation,
dissolution or winding up of the affairs of El Paso is $5,000 per share,
together with accrued dividends to the date of payment. These dividend and
liquidation rights are senior to the dividend and liquidation rights of the El
Paso common stock and the El Paso Series A Participating Junior Preferred Stock
and pari passu with the dividend and liquidation rights of the El Paso Series C
Mandatorily Convertible Single Reset Preferred Stock. The El Paso Series B
Mandatorily Convertible Single Reset Preferred Stock is not redeemable after the
Rate Reset Date.
After the Rate Reset Date and prior to the date on which the El Paso Series
B Mandatorily Convertible Single Reset Preferred Stock automatically convert
into shares of El Paso common stock, the holders of the El Paso Series B
Mandatorily Convertible Single Reset Preferred Stock will be entitled to convert
the preferred shares into El Paso common stock based on a conversion price of
110% of the Reset Price. The El Paso Series B Mandatorily Convertible Single
Reset Preferred Stock will be converted automatically into El Paso common stock
on the later to occur of the third anniversary of the Rate Reset Date and March
15, 2006, and holders will also be entitled to receive cash equal to all accrued
dividends. The number of shares of El Paso common stock issuable per share of El
Paso Series B Mandatorily Convertible Single Reset Preferred Stock upon
automatic conversion will equal the quotient of $5,000 divided by a conversion
price which will be between 100% to 110% of the Reset Price, depending on the
market price of El Paso common stock at the time of automatic conversion.
The holders of El Paso Series B Mandatorily Convertible Single Reset
Preferred Stock generally have no voting rights except as may be required by
statute, but are entitled to certain class voting rights, including the
requirement for approval by the holders of at least a majority thereof to
effect:
- an amendment to El Paso's certificate of incorporation that would
adversely affect the powers, rights or preferences of the holders of the
El Paso Series B Mandatorily Convertible Single Reset Preferred Stock;
- the authorization or issuance of capital stock ranking senior to the El
Paso Series B Mandatorily Convertible Single Reset Preferred Stock; or
- the merger or consolidation of El Paso in which holders of the El Paso
Series B Mandatorily Convertible Single Reset Preferred Stock do not
receive or continue to hold a similar interest in the surviving entity,
subject to certain exceptions.
If full cumulative dividends on the El Paso Series B Mandatorily
Convertible Single Reset Preferred Stock are not paid for six consecutive
quarters, the holders of the El Paso Series B Mandatorily Convertible Single
Reset Preferred Stock (together with the holders of any other series of capital
stock, including the Series A preferred stock and the El Paso Series C
Mandatorily Convertible Single Reset Preferred Stock, that are entitled to elect
directors as a result of dividend arrearages) will have the right to elect two
directors to El Paso's Board of Directors until all dividend arrearages have
been paid. If we fail to pay dividends when due on El Paso Series B Mandatorily
Convertible Single Reset Preferred Stock, subject to certain limited exceptions,
we are prohibited from paying dividends on junior stock, including El Paso
common stock and Series A preferred stock, and are limited in our ability to pay
dividends on parity stock, including El Paso Series C Mandatorily Convertible
Single Reset Preferred Stock, and we and our subsidiaries are prohibited from
redeeming or acquiring junior stock, including El Paso common
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stock and Series A preferred stock or parity stock, including El Paso Series C
Mandatorily Convertible Single Reset Preferred Stock.
EL PASO SERIES C MANDATORILY CONVERTIBLE SINGLE RESET PREFERRED STOCK
In November 2001, we issued 190,000 shares of El Paso Series C Mandatorily
Convertible Single Reset Preferred Stock having an initial aggregate liquidation
preference of $950,000,000 in connection with the issuance by Gemstone Investor
Limited and Gemstone Investor, Inc. of $950,000,000 aggregate principal amount
of notes (the "Gemstone Notes"). The shares of El Paso Series C Mandatorily
Convertible Single Reset Preferred Stock were deposited into a trust established
for the benefit of the holders of the Gemstone Notes. We are the beneficial
owner of the trust. The preferred shares are to be sold by the trust only if:
- The Gemstone Notes are accelerated as a result of an event of default,
including, in addition to various defaults under the documentation
relating to the transactions pursuant to which the Gemstone Notes were
issued, payment defaults by El Paso under debt obligations specified in
the documentation relating to the transactions;
- The funds necessary to pay the Gemstone Notes upon maturity are not
timely deposited; or
- Our credit ratings fall below investment grade and our common stock price
for ten consecutive trading days falls below $36.16, subject to certain
adjustments.
The date that the preferred shares are sold by the trust, or under certain
circumstances the date of a failed remarketing of the preferred shares, is the
"Series C Rate Reset Date," and the market price of El Paso common stock on the
day such sale is priced or the date of such failed remarketing is the "Series C
Reset Price," which price is subject to certain antidilution adjustments. If the
Gemstone Notes, which mature on October 31, 2004, are timely repaid in full, we
expect the El Paso Series C Mandatorily Convertible Single Reset Preferred Stock
will be retired and canceled.
No dividends are payable on the El Paso Series C Mandatorily Convertible
Single Reset Preferred Stock prior to the Series C Rate Reset Date. After the
Series C Rate Reset Date, dividends are payable at a rate equal to 7% per annum
plus an amount which is intended to approximate the dividend yield on the El
Paso common stock as of the Series C Rate Reset Date. Such dividends are payable
quarterly in arrears and are cumulative. The amount payable on shares of El Paso
Series C Mandatorily Convertible Single Reset Preferred Stock in the event of a
liquidation, dissolution or winding up of the affairs of El Paso is $5,000 per
share, together with accrued dividends to the date of payment. These dividend
and liquidation rights are senior to the dividend and liquidation rights of the
El Paso common stock and the El Paso Series A Participating Junior Preferred
Stock and pari passu with the dividend and liquidation rights of the El Paso
Series B Mandatorily Convertible Single Reset Preferred Stock. The El Paso
Series C Mandatorily Convertible Single Reset Preferred Stock is not redeemable
after the Series C Rate Reset Date.
After the Series C Rate Reset Date and prior to the date on which the El
Paso Series C Mandatorily Convertible Single Reset Preferred Stock automatically
convert into shares of El Paso common stock, the holders of the El Paso Series C
Mandatorily Convertible Single Reset Preferred Stock will be entitled to convert
the preferred shares into El Paso common stock based on a conversion price of
110% of the Series C Reset Price. At any time prior to the Series C Rate Reset
Date, provided that a condition described above allowing the trust to sell the
El Paso Series C Mandatorily Convertible Single Reset Preferred Stock has
occurred and is continuing and El Paso is prohibited from remarketing the El
Paso Series C Mandatorily Convertible Single Reset Preferred Stock (to allow for
the remarketing of the El Paso Series B Mandatorily Convertible Single Reset
Preferred Stock), the holders of the El Paso Series C Mandatorily Convertible
Single Reset Preferred Stock will have the option to convert their preferred
shares into 199.573 shares of El Paso common stock, subject to certain
anti-dilution adjustments. The El Paso Series C Mandatorily Convertible Single
Reset Preferred Stock will be converted automatically into El Paso common stock
on the later to occur of the third anniversary of the Series C
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Rate Reset Date and November 1, 2007, and holders will also be entitled to
receive cash equal to all accrued dividends. The number of shares of El Paso
common stock issuable per share of El Paso Series C Mandatorily Convertible
Single Reset Preferred Stock upon automatic conversion will equal the quotient
of $5,000 divided by a conversion price which will be between 100% to 110% of
the Series C Reset Price, depending on the market price of El Paso common stock
at the time of automatic conversion.
The holders of El Paso Series C Mandatorily Convertible Single Reset
Preferred Stock generally have no voting rights except as may be required by
statute, but are entitled to certain class voting rights, including the
requirement for approval by the holders of at least a majority thereof to
effect:
- an amendment to El Paso's certificate of incorporation that would
adversely affect the powers, rights or preferences of the holders of the
El Paso Series C Mandatorily Convertible Single Reset Preferred Stock;
- the authorization or issuance of capital stock ranking senior to the El
Paso Series C Mandatorily Convertible Single Reset Preferred Stock; or
- the merger or consolidation of El Paso in which holders of the El Paso
Series C Mandatorily Convertible Single Reset Preferred Stock do not
receive or continue to hold a similar interest in the surviving entity,
subject to certain exceptions.
If full cumulative dividends on the El Paso Series C Mandatorily
Convertible Single Reset Preferred Stock are not paid for six consecutive
quarters, the holders of the El Paso Series C Mandatorily Convertible Single
Reset Preferred Stock (together with the holders of any other series of capital
stock, including the Series A preferred stock and the El Paso Series B
Mandatorily Convertible Single Reset Preferred Stock, that are entitled to elect
directors as a result of dividend arrearages) will have the right to elect two
directors to El Paso's Board of Directors until all dividend arrearages have
been paid. If we fail to pay dividends when due on El Paso Series C Mandatorily
Convertible Single Reset Preferred Stock, subject to certain limited exceptions,
we are prohibited from paying dividends on junior stock, including El Paso
common stock and Series A preferred stock and limited in our ability to pay
dividends on parity stock, including El Paso Series B Mandatorily Convertible
Single Reset Preferred Stock, and we and our subsidiaries are prohibited from
redeeming or acquiring junior stock, including El Paso common stock or Series A
preferred stock or parity stock, including El Paso Series B Mandatorily
Convertible Single Reset Preferred Stock.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
We are a Delaware corporation subject to Section 203 of the Delaware
General Corporation Law. Generally, Section 203 prohibits a publicly held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless (1)
prior to such date, either the business combination or such transaction which
resulted in the stockholder becoming an interested stockholder is approved by
the board of directors of the corporation, (2) upon consummation of the
transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owns at least 85% of the outstanding
voting stock, or (3) on or after such date, the business combination is approved
by the board of directors of the corporation and by the affirmative vote at
least 66 2/3% of the outstanding voting stock that is not owned by the
interested stockholder. A "business combination" includes merger, asset sales
and other transactions resulting in a financial benefit to the interested
stockholder. An "interested stockholder" is a person who, together with
affiliates and associates, owns, or, within three years, did own, 15% or more of
the corporation's outstanding voting stock.
EL PASO'S RESTATED CERTIFICATE OF INCORPORATION
Our charter contains provisions applicable to a merger, consolidation,
asset sale, liquidation, recapitalization, or other business transactions,
including the issuance of our stock ("business combinations"). Our charter
requires the affirmative vote of 51% or more of our voting stock, excluding any
voting
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stock held by an interested stockholder (defined in our charter as any person
who owns 10% or more of the voting stock and specifically defined affiliates),
with respect to all business combinations involving the interested stockholder,
unless directors who served as such prior to the time the interested stockholder
became an interested stockholder determine by a two-thirds vote that (1) the
proposed consideration meets specified minimum price criteria, or (2)(A) the
interested stockholder holds 80% or more of the voting stock and (B) the
interested stockholder has not received (other than proportionately as a
stockholder) the benefit of any financial assistance from us, whether in
anticipation of or in connection with such business combination. To meet the
minimum price criteria, all stockholders must receive consideration or retain
value per share after the transaction which is not less than the price per share
paid by the interested stockholder. Our charter also requires the dissemination
to stockholders of a proxy or information statement describing the business
combination.
Our charter also prohibits the taking of any action by written stockholder
consent in lieu of a meeting and the subsequent amendment of our charter to
repeal or alter the above provisions without the affirmative vote of 51% of our
voting stock, excluding voting stock held by any interested stockholder.
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DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of:
- debt or equity securities issued by us or securities of third parties, a
basket of such securities, an index or indices of such securities or any
combination of the above as specified in the applicable prospectus
supplement;
- currencies; or
- commodities.
Each purchase contract will entitle the holder thereof to purchase or sell,
and obligate us to sell or purchase, on specified dates, such securities,
currencies or commodities at a specified purchase price, which may be based on a
formula, all as set forth in the applicable prospectus supplement. We may,
however, satisfy our obligations, if any, with respect to any purchase contract
by delivering the cash value of such purchase contract or the cash value of the
property otherwise deliverable or, in the case of purchase contracts on
underlying currencies, by delivering the underlying currencies, as set forth in
the applicable prospectus supplement. The applicable prospectus supplement will
also specify the methods by which the holders may purchase or sell such
securities, currencies or commodities and any acceleration, cancellation or
termination provisions or other provisions relating to the settlement of a
purchase contract.
The purchase contracts may require us to make periodic payments to the
holders thereof or vice versa, which payments may be deferred to the extent set
forth in the applicable prospectus supplement, and those payments may be
unsecured or prefunded on some basis. The purchase contracts may require the
holders thereof to secure their obligations in a specified manner to be
described in the applicable prospectus supplement. Alternatively, purchase
contracts may require holders to satisfy their obligations thereunder when the
purchase contracts are issued. Our obligation to settle such pre-paid purchase
contracts on the relevant settlement date may constitute indebtedness.
Accordingly, pre-paid purchase contracts will be issued under either the senior
indenture or the subordinated indenture.
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DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt or equity securities or securities
of third parties or other rights, including rights to receive payment in cash or
securities based on the value, rate or price of one or more specified
commodities, currencies, securities or indices, or any combination of the
foregoing. Warrants may be issued independently or together with any other
securities and may be attached to, or separate from, such securities. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The terms of any warrants to be
issued and a description of the material provisions of the applicable warrant
agreement will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the following terms of
any warrants in respect of which this prospectus is being delivered:
- the title of such warrants;
- the aggregate number of such warrants;
- the price or prices at which such warrants will be issued;
- the currency or currencies, in which the price of such warrants will be
payable;
- the securities or other rights, including rights to receive payment in
cash or securities based on the value, rate or price of one or more
specified commodities, currencies, securities or indices, or any
combination of the foregoing, purchasable upon exercise of such warrants;
- the price at which and the currency or currencies in which the securities
or other rights purchasable upon exercise of such warrants may be
purchased;
- the date on which the right to exercise such warrants shall commence and
the date on which such right shall expire;
- if applicable, the minimum or maximum amount of such warrants which may
be exercised at any one time;
- if applicable, the designation and terms of the securities with which
such warrants are issued and the number of such warrants issued with each
such security;
- if applicable, the date on and after which such warrants and the related
securities will be separately transferable;
- information with respect to book-entry procedures, if any;
- if applicable, a discussion of any material United States Federal income
tax considerations; and
- any other terms of such warrants, including terms, procedures and
limitations relating to the exchange and exercise of such warrants.
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DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units
consisting of one or more purchase contracts, warrants, debt securities, shares
of preferred stock, shares of common stock or any combination of such
securities. The applicable prospectus supplement will describe:
- the terms of the units and of any of the purchase contracts, warrants,
debt securities, preferred stock and common stock comprising the units,
including whether and under what circumstances the securities comprising
the units may be traded separately;
- a description of the terms of any unit agreement governing the units; and
- a description of the provisions for the payment, settlement, transfer or
exchange of the units.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
Each trust may issue in one or more offerings only one series of trust
preferred securities having terms described in the applicable prospectus
supplement. The declaration of each trust authorizes the trust to issue one
series of trust preferred securities. The declaration of each trust, as amended
in connection with the trust's sale of trust preferred securities, will be
qualified as an indenture under the Trust Indenture Act.
The trust preferred securities will have such terms, including
distributions, redemption, voting, conversion, exchange, liquidation rights and
such other preferred, deferred or other special rights or such restrictions as
are set forth in the declaration, as amended in connection with the trust's sale
of trust preferred securities or made part of the declaration by the Trust
Indenture Act. You should refer to the prospectus supplement relating to the
trust preferred securities of the trust for specific terms, including:
- the distinctive designation of the trust preferred securities;
- the number of trust preferred securities issued by each trust;
- the annual distribution rate (or method of determining such rate) for
trust preferred securities issued by the trust and the date or dates upon
which the distributions are payable;
- the date or dates or method of determining the date or dates from which
distributions on trust preferred securities will be cumulative;
- the amount or amounts that will be paid out of the assets of the trust to
the holders of trust preferred securities upon voluntary or involuntary
dissolution, winding-up or termination of the trust;
- the obligation, if any, of the trust to purchase or redeem the trust
preferred securities and the price or prices at which, the period or
periods within which, and the terms and conditions upon which, trust
preferred securities will be purchased or redeemed, in whole or in part,
pursuant to that obligation;
- the voting rights, if any, of trust preferred securities in addition to
those required by law, including the number of votes per trust preferred
security and any requirement for the approval by the holders of trust
preferred securities, as a condition to specified action or amendments to
the declaration of the trust;
- the terms and conditions, if any, upon which the assets of the trust may
be distributed to holders of trust preferred securities;
- provisions regarding convertibility or exchangeability of the trust
preferred securities for our capital stock or debt securities;
- if applicable, any securities exchange upon which the trust preferred
securities will be listed; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of trust preferred securities not inconsistent with the
declaration of the trust or with applicable law.
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We will guarantee all trust preferred securities offered to the limited
extent set forth below under "Description of the Trust Preferred Securities
Guarantees."
Any U.S. federal income tax considerations applicable to any offering of
trust preferred securities will be described in the applicable prospectus
supplement.
In connection with the issuance of trust preferred securities, each trust
will issue one series of trust common securities. The declaration of each trust
authorizes the administrative trustees of the trust to issue on behalf of the
trust one series of trust common securities. The amended and restated
declaration of the trust will set forth the terms of the trust common
securities, including terms regarding distributions, redemption, voting,
liquidation rights and any restrictions. The terms of the trust common
securities issued by each trust will be substantially identical to the terms of
the trust preferred securities issued by the trust. The trust common securities
will rank equally, and payments will be made on the trust common securities pro
rata, with the trust preferred securities. However, upon an event of default
under the declaration, the rights of the holders of the trust common securities
to payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the trust
preferred securities. Except in the limited circumstances to be described in the
amended and restated declaration, the trust common securities will also carry
the right to vote to appoint, remove or replace any of the trustees of a trust.
All of the trust common securities of each trust will be directly or indirectly
owned by us.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEES
A summary of information concerning the trust guarantees which we will
execute and deliver from time to time for the benefit of the holders of the
trust preferred securities is set forth below. Each trust guarantee will be
qualified as an indenture under the Trust Indenture Act. JPMorgan Chase Bank
will act as the trust guarantee trustee, or indenture trustee, under each trust
guarantee. The terms of each trust guarantee will be those set forth in that
trust guarantee and those made part of that trust guarantee by the Trust
Indenture Act. The following is a summary of the material terms and provisions
of the trust preferred securities guarantees. You should refer to the provisions
of the form of trust guarantee and the Trust Indenture Act for a more complete
discussion. We have filed the form of trust guarantee as an exhibit to the
registration statement of which this prospectus is a part. Each trust guarantee
will be held by the trust guarantee trustee for the benefit of the holders of
the trust preferred securities of the applicable trust.
GENERAL
Under each trust guarantee, we will irrevocably and unconditionally agree,
to the extent set forth in each applicable trust guarantee, to pay the trust
guarantee payments described below in full to the holders of the trust preferred
securities issued by a trust, in the event they are not paid by or on behalf of
the applicable trust when due, regardless of any defense, right of set-off or
counterclaim which the trust may have or assert.
The following payments (the trust guarantee payments) with respect to trust
preferred securities of any trust not paid by the trust when due, will be
subject to the related trust guarantee:
- any accrued and unpaid distributions required to be paid on the trust
preferred securities, to the extent that trust will have funds legally
and immediately available for payment;
- the redemption price of any trust preferred securities called for
redemption by that trust, including all accrued and unpaid distributions
to the date of redemption, to the extent that trust has funds available
for payment; and
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- upon dissolution, winding-up or termination of that trust (other than in
connection with the distribution of the assets of the trust to the
holders of trust preferred securities or the redemption of all of the
trust preferred securities), the lesser of:
(a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the trust preferred securities to the date of payment, to
the extent that trust has funds available for payment; and
(b) the amount of assets of the trust remaining available for
distribution to holders of its trust preferred securities in liquidation of
the trust.
Our obligation to make a trust guarantee payment will be satisfied by our
direct payment of the required amounts to the holders of the applicable trust
preferred securities or by causing the applicable trust to pay the required
amounts to the holders.
Each trust guarantee will be a full and unconditional guarantee with
respect to the applicable trust preferred securities, but will not apply to any
payment of distributions when the applicable trust does not have funds "legally
and immediately" available for payment. If we do not make interest payments on
the subordinated debt securities purchased by a trust, that trust will not pay
distributions on the trust preferred securities issued by it and will not have
funds "legally and immediately" available for such payment. See "Description of
the Debt Securities -- Covenants" included in this prospectus.
We have also agreed separately to irrevocably and unconditionally guarantee
the obligations of the trusts with respect to the trust common securities (the
trust common securities guarantees) to the same extent as the trust guarantees,
except that upon an event of default under the subordinated indenture relating
to the subordinated debt securities purchased by that trust, holders of trust
preferred securities will have priority over holders of trust common securities
with respect to distributions and payments on liquidation, redemption or
otherwise.
COVENANTS
In each trust guarantee, we will covenant that, so long as any trust
preferred securities remain outstanding, if any event that would constitute an
event of default under the trust guarantee or the declaration of the applicable
trust occurs, then we will not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or make any liquidation
payment with respect to, any of our capital stock, with the following
exceptions:
- purchases or acquisitions of shares of our common stock in connection
with our obligations under our employee benefit plans,
- purchases or acquisitions of shares of our common stock in connection
with our obligations under any contract or security requiring us to
purchase shares of our common stock or,
- the purchase of fractional interests in shares of our capital stock as a
result of a reclassification of our capital stock or the exchange or
conversion of one class or series of our capital stock for another class
or series of our capital stock, or make any guarantee payments with
respect to the foregoing.
Additionally, we will not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities,
including guarantees, issued by us which rank equally with or junior to the
subordinated debt securities.
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of trust preferred securities, in which case no vote will be
required, each trust guarantee may be amended only with the prior approval of
the holders of not less than a majority in liquidation amount of the outstanding
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trust preferred securities of the applicable trust. The manner of obtaining this
approval of holders of the trust preferred securities will be described in an
accompanying prospectus supplement. All guarantees and agreements contained in a
trust guarantee will bind our successors, assigns, receivers, trustees and
representatives and will inure to the benefit of the holders of the trust
preferred securities of the applicable trust then outstanding.
TERMINATION
Each trust guarantee will terminate as to the trust preferred securities of
the applicable trust upon the first to occur of:
- full payment of the redemption price of all trust preferred securities of
the applicable trust;
- distribution of the assets of the trust to the holders of the trust
preferred securities of the applicable trust; and
- full payment of the amounts payable upon liquidation of the trust in
accordance with the declaration of the trust.
Each trust guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of trust preferred securities
issued by the applicable trust must restore payment of any sums paid under the
trust preferred securities or the trust guarantee.
EVENTS OF DEFAULT
An event of default under a trust guarantee will occur upon our failure to
perform any of our payment or other obligations under that trust guarantee.
The holders of a majority in liquidation amount of the trust preferred
securities to which the trust guarantee relates have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trust guarantee trustee in respect of the trust guarantee or to direct the
exercise of any trust or power conferred upon the trust guarantee trustee under
the trust preferred securities guarantee. If the trust guarantee trustee fails
to enforce the trust guarantee, any holder of trust preferred securities
relating to the trust guarantee may institute a legal proceeding directly
against us to enforce the trust guarantee trustee's rights under the trust
guarantee, without first instituting a legal proceeding against the relevant
trust, the trust guarantee trustee or any other person or entity. However, if we
have failed to make a guarantee payment, a holder of trust preferred securities
may directly institute a proceeding against us for enforcement of the trust
guarantee for such payment. We waive any right or remedy to require that any
action be brought first against the trust or any other person or entity before
proceeding directly against us.
STATUS OF THE TRUST GUARANTEES
The trust guarantees will constitute our unsecured obligations and will
rank:
- subordinate and junior in right of payment to all of our other
liabilities, except those obligations or liabilities made equal in
priority or subordinate by their terms;
- equally with the most senior preferred or preference stock that we may
issue and with any guarantee that we may enter into in respect of any
preferred or preference stock of any our affiliates; and
- senior to our common stock.
The terms of the trust preferred securities provide that each holder of
trust preferred securities of the applicable trust, by acceptance of the
securities, agrees to the subordination provisions and other terms of the trust
guarantee relating to the applicable trust preferred securities.
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The trust guarantees will constitute a guarantee of payment and not of
collection. Accordingly, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under the trust guarantee
without instituting a legal proceeding against any other person or entity.
INFORMATION CONCERNING THE TRUST GUARANTEE TRUSTEE
Prior to the occurrence of a default with respect to a trust guarantee and
after the curing or waiving of all events of default with respect to that trust
guarantee, the trust guarantee trustee undertakes to perform only those duties
as are specifically set forth in that trust guarantee. In case an event of
default has occurred and has not been cured or waived, the guarantee trustee
will exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to these provisions, the trust
guarantee trustee is under no obligation to exercise any of the powers vested in
it by a trust guarantee at the request of any holder of trust preferred
securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred through the exercise of those powers.
We and our affiliates may, from time to time, maintain a banking
relationship with the trust guarantee trustee.
GOVERNING LAW
The trust guarantees will be governed by, and construed in accordance with,
the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
As long as we make payments of interest and other payments when due on the
subordinated debt securities, those payments will be sufficient to cover
distributions and other payments due on the trust preferred securities,
primarily because:
- the aggregate principal amount of the subordinated debt securities will
be equal to the sum of the aggregate stated liquidation preference of the
trust securities;
- the interest rate and interest and other payment dates of the
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the trust preferred securities;
- we will pay any and all costs, expenses and liabilities of the trusts,
except the trusts' obligations to holders of its trust preferred
securities under the terms of such trust preferred securities; and
- the declaration of each trust prohibits the trust from engaging in any
activity that is not consistent with the limited purposes of the trust.
We irrevocably guarantee payments of distributions and other amounts due on
the trust preferred securities of a trust, to the extent the trust has funds
available for the payment of such distributions as described in "Description of
the Trust Preferred Securities Guarantees" in this prospectus. Taken together,
our obligations under the subordinated debt securities, the subordinated
indenture, the declarations of the trusts and the trust guarantees provide a
full, irrevocable and unconditional guarantee of payments of distributions and
other amounts due on the trust preferred securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such a guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and unconditional
guarantee of each of the trust's obligations under its trust preferred
securities. If we do not make payments on the subordinated debt securities, the
trusts will not pay distributions or other amounts due on the trust preferred
securities. The trust guarantees do not cover payment of distributions when the
applicable trust does not have sufficient funds to pay the distributions. In
this event, the remedies of a holder of the trust preferred securities of the
trust are described in this prospectus under "Description of
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the Trust Preferred Securities Guarantees -- Events of Default." Our obligations
under the trust guarantees are unsecured and are subordinate and junior in right
of payment to all of our other liabilities.
Notwithstanding anything to the contrary in the subordinated indenture and
to the extent set forth in the subordinated indenture, we have the right to
set-off any payment we are otherwise required to make under the subordinated
indenture with and to the extent we have made, or are concurrently on the date
of such payment making, a payment under a trust guarantee.
A holder of trust preferred securities of a trust may institute a legal
proceeding directly against us to enforce its rights under the trust guarantee
without first instituting a legal proceeding against the trust guarantee
trustee, the trust or any other person or entity.
The trust preferred securities of a trust evidence a beneficial interest in
the trust. The trusts exist for the sole purpose of issuing the trust securities
and investing the proceeds in subordinated debt securities. A principal
difference between the rights of a holder of trust preferred securities and a
holder of subordinated debt securities is that a holder of subordinated debt
securities is entitled to receive from us the principal amount of and interest
accrued on subordinated debt securities held, while a holder of trust preferred
securities is entitled to receive distributions from a trust, or from us under
the trust guarantee, if and to the extent the trust has funds available for the
payment of such distributions.
Upon any voluntary or involuntary termination, winding-up or liquidation of
a trust involving the liquidation of the subordinated debt securities, the
holders of the trust preferred securities of the trust will be entitled to
receive, out of assets held by the trust and after satisfaction of liabilities
to creditors of the trust as provided by applicable law, the liquidation
distribution in cash. Upon any voluntary or involuntary liquidation or
bankruptcy of us, the property trustees of a trust, as holder of the
subordinated debt securities of the trust, would be a subordinated creditor of
us, subordinated in right of payment to all of our senior debt, but entitled to
receive payment in full of principal and interest, before any of our common
stockholders receive payments or distributions. Since we are the guarantor under
the trust guarantees and we have agreed to pay for all costs, expenses and
liabilities of the trusts other than the trusts' obligations to the holders of
the trust preferred securities, the positions of a holder of trust preferred
securities and a holder of subordinated debt securities relative to other
creditors and to our shareholders in the event of our liquidation or bankruptcy
would be substantially the same.
A default or event of default under any of our senior debt will not
constitute a default or event of default under the subordinated indenture.
However, in the event of payment defaults under, or acceleration of, our senior
debt, the subordination provisions of the subordinated indenture provide that no
payments may be made on the subordinated debt securities until our senior debt
has been paid in full or any payment default under our senior debt has been
cured or waived. Our failure to make required payments on a series of
subordinated debt securities would constitute an event of default under the
subordinated indenture.
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PLAN OF DISTRIBUTION
We may sell our securities through agents, underwriters or dealers, or
directly to purchasers.
We may designate agents to solicit offers to purchase our securities.
- We will name any agent involved in offering or selling our securities,
and any commissions that we will pay to the agent, in our prospectus
supplement.
- Unless we indicate otherwise in our prospectus supplement, our agents
will act on a best efforts basis for the period of their appointment.
- Our agents may be deemed to be underwriters under the Securities Act of
1933 of any of our securities that they offer or sell.
We may use one or more underwriters in the offer or sale of our securities.
- If we use an underwriter, we will execute an underwriting agreement with
the underwriter(s) at the time that we reach an agreement for the sale of
our securities.
- We will include the names of the managing underwriter(s), as well as any
other underwriters, and the terms of the transaction, including the
compensation the underwriters and dealers will receive, in our prospectus
supplement.
- The underwriters will use our prospectus supplement to sell our
securities.
We may use a dealer to sell our securities.
- If we use a dealer, we, as principal, will sell our securities to the
dealer.
- The dealer will then sell our securities to the public at varying prices
that the dealer will determine at the time it sells our securities.
- We will include the name of the dealer and the terms of our transactions
with the dealer in our prospectus supplement.
We may directly solicit offers to purchase our securities, and we may
directly sell our securities to institutional or other investors. We will
describe the terms of our direct sales in our prospectus supplement.
We may indemnify agents, underwriters, and dealers against certain
liabilities, including liabilities under the Securities Act of 1933. Our agents,
underwriters, and dealers, or their affiliates, may be customers of, engage in
transactions with or perform services for us, in the ordinary course of
business.
We may authorize our agents and underwriters to solicit offers by certain
institutions to purchase our securities at the public offering price under
delayed delivery contracts.
- If we use delayed delivery contracts, we will disclose that we are using
them in the prospectus supplement and will tell you when we will demand
payment and delivery of the securities under the delayed delivery
contracts.
- These delayed delivery contracts will be subject only to the conditions
that we set forth in the prospectus supplement.
- We will indicate in our prospectus supplement the commission that
underwriters and agents soliciting purchases of our securities under
delayed delivery contracts will be entitled to receive.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, El Paso in the ordinary course of
business.
Other than common stock, all securities offered will be a new issue of
securities with no established trading market. Any underwriter to whom
securities are sold by us or any El Paso Trust for public offering
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and sale may make a market in such securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. The securities may or may not be listed on a national securities
exchange or a foreign securities exchange, except for the common stock which is
currently listed and traded on the NYSE and PCX. Any common stock sold by this
prospectus will be listed for trading on the NYSE subject to official notice of
issuance. We cannot give you any assurance as to the liquidity of or the trading
markets for any securities.
LEGAL MATTERS
The validity of the common stock, preferred stock, senior debt securities,
subordinated debt securities, trust guarantees, purchase contracts, warrants and
units will be passed upon for El Paso by Andrews & Kurth Mayor, Day, Caldwell &
Keeton L.L.P., Houston, Texas. The validity of the trust preferred securities
under Delaware Law will be passed upon for the El Paso Trusts by Potter Anderson
& Corroon LLP. If the securities are being distributed in an underwritten
offering, the validity of the securities will be passed upon for the
underwriters by counsel identified in the related prospectus supplement.
EXPERTS
The audited combined financial statements incorporated by reference in this
prospectus from the Current Report on Form 8-K/A dated May 17, 2001, except as
they relate to El Paso CGP Company (formerly The Coastal Corporation), have been
audited by PricewaterhouseCoopers 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 firms 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/A
dated May 17, 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/A dated May 17, 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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