As filed with the Securities and Exchange Commission on May 20, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EL PASO ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 76-0568816
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
El Paso Energy Building
1001 Louisiana Street
Houston, Texas 77002
(713) 420-2131
(Address, including zip code, of Principal Executive Offices)
EL PASO ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
(Full title of the plan)
Britton White Jr., Esq.
Executive Vice President and General Counsel
El Paso Energy Building
1001 Louisiana Street
Houston, Texas 77002
(713) 420-2131
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Obligation Offering Price fee
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation
Obligations<F1> $50,000,000 100% $50,000,000<F1> $13,900
- ----------------------------------------------------------------------------------------------
<FN>
<F1> The Deferred Compensation Obligations are unsecured obligations of the Registrant
to pay deferred compensation in the future in accordance with the terms of the Plan.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of the General Instructions to the Registration Statement on Form
S-8 will be sent or given to employees of the Registrant selected
to participate in the Plan as required by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). These documents and the documents
incorporated herein by reference pursuant to Item 3 of Part II of
this Registration Statement taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act (the "Prospectus").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission (the "Commission") by El Paso Energy
Corporation (the "Registrant") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for
the year ended December 31, 1998, which contains audited
financial statements for the most recent year for which such
statements have been filed;
(b) All other reports filed by the Registrant pursuant
to Section 13(a) or 15(d) of the Exchange Act, since the end
of the fiscal year covered by the Annual Report referred to
in (a) above; and
(c) The description of the Registrant's common stock,
par value $3.00 per share (the "Common Stock"), contained in
the Registrant's Registration Statement on Form 8-A filed
with the Commission on August 3, 1998, and a description of
the Registrant's preferred stock purchase rights associated
with its Common Stock, contained in Registrant's
Registration Statement on Form 8-A/A filed with the
Commission on January 29, 1999, pursuant to Section 12 of
the Exchange Act, including any amendments or reports filed
for the purposes of updating such descriptions.
All documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing such documents. Any
statement contained herein or in a document incorporated or
deemed to be incorporated herein by reference shall be deemed to
be modified or superseded for purposes of the Registration
Statement and the prospectus to the extent that a statement
contained herein or in any subsequently filed document which also
is, or is deemed to be, incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or
Prospectus.
Item 4. Description of Securities.
Capitalized terms used without definition herein have the
meanings assigned in the El Paso Energy Corporation Deferred
Compensation Plan, as amended (the "Plan"). The Plan allows
officers, directors and certain key employees ("Participants") of
the Registrant and its affiliates to submit elections to defer
compensation, including elections as to the amount to be deferred
and the timing, and manner of distribution. Deferred amounts are
credited in deferred compensation ledger accounts (an "Account").
Each Participant may elect, under the Plan, to defer all or
a portion of his or her annual Base Compensation, Cash Incentive
Award, Performance Units, Equity Awards and amounts awarded under
other plans, as applicable, until his or her retirement, death,
Permanent Disability, resignation or termination of employment or
until any other specified time that is determined by the
Management Committee. Interest or other income, expense, gain or
loss, as applicable, shall accrue on the deferred amount to the
date of distribution, and shall be credited to the Memorandum
Account at the end of each calendar quarter or such other periods
as may be determined by the Management Committee. The Management
Committee shall determine the rate of interest or method for
determining other income, expense, gain or losses periodically
and in so doing may take into account the earnings, losses,
appreciation or depreciation attributable to any discretionary
investments made by the Company (if any), including, but not
limited to, any investment direction from a Participant regarding
amounts credited to his or her Memorandum Account. The
Management Committee may, with or without a Participant's
concurrence, reallocate amounts credited to the Accounts from
time to time as the Management Committee may determine.
Upon the retirement, death, Permanent Disability,
resignation, designated payment date, or termination of
employment all amounts credited to a Participant's Account shall
be paid to the Participant (or to his or her beneficiary) in (a)
a lump-sum cash payment, (b) a lump-sum Common Stock
distribution, to the extent the Participant has shares of Common
Stock credited to his or her Deferred Stock Account, (c) a
combination of (a) and (b) or in periodic installments over a
period of years to be determined by the Management Committee in
its sole discretion. Any Common Stock distributed under the Plan
has been registered pursuant to an effective Registration
Statement on Form S-8 for the plan from which such shares are to
be issued.
The Registrant reserves the right to amend, modify or
terminate the Plan, or suspend any of its provisions, at any
time and from time to time, except that no such amendment,
modification or termination shall adversely affect the right
of each Participant to the amounts credited to such
Participant's Account at the time of such amendment,
modification or termination.
Item 5. Interests of Named Experts and Counsel.
The information required by Item 5 is not applicable to this
Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation may indemnify directors
and officers as well as other employees and individuals
against expenses (including attorneys' fees), judgements,
fines and amounts paid in settlement in connection with
specified actions, suits or proceedings if they acted in
good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceedings, had
no reasonable cause to believe their conduct was unlawful.
Similar indemnity is authorized for such persons against
expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of any
such threatened, pending or completed action or suit if such
person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the corporation, and provided further that (unless a court
of competent jurisdiction otherwise provides) such person
shall not have been adjudged liable to the corporation. The
statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's by-
laws, disinterested director vote, stockholder vote,
agreement or otherwise.
Article X of the By-laws of the Registrant requires
indemnification to the full extent permitted under Delaware
law as from time to time in effect. Subject to any
restrictions imposed by Delaware law, the By-laws provide an
unconditional right to indemnification for all expense,
liability and loss (including attorneys' fees, judgements,
fines, ERISA excise taxes or penalties and amounts paid in
settlement) actually and reasonably incurred or suffered by
any person in connection with any actual or threatened
proceeding (including, to the extent permitted by law, any
derivative action) by reason of the fact that such person is
or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
including an employee benefit plan. The By-laws also
provide that the Registrant may, by action of its Board of
Directors, provide indemnification to its agents with the
same scope and effect as the foregoing indemnification of
directors and officers.
Section 102(b)(7) of the General Corporation Law of the
State of Delaware permits a corporation to provide in its
certificate of incorporation that a director of the
corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability
for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) payment of unlawful
dividends or unlawful stock purchases or redemptions, or
(iv) any transaction from which the director derived an
improper personal benefit.
Article 10 of the Registrant's Restated Certificate of
Incorporation, as amended, provides that to the full extent
that the General Corporation Law of the State of Delaware,
as it now exists or may hereafter be amended, permits the
limitation or elimination of the liability of directors, a
director of the Registrant shall not be liable to the
Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director. Any amendment to or
repeal of such Article 10 shall not adversely affect any
right or protection of a director of the Registrant for or
with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
The registrant maintains Directors' and Officers' liability
insurance which provides for payment on behalf of the
directors and officers of all losses of such persons (other
than matters uninsurable under the law) arising from claims,
including claims arising under the Securities Act, for acts
or omissions by such persons while acting as directors or
officers.
Item 7. Exemption from Registration Claimed.
The information required by Item 7 is not applicable to this
Registration Statement.
Item 8. Exhibits.
Exhibit
Number Description
5.1 Opinion of Andrews & Kurth L.L.P. regarding the
legality of the securities being registered
hereunder.
10.1 El Paso Energy Corporation Deferred Compensation
Plan, Amended and Restated effective as of December
3, 1998.
23.1 Consent of Counsel (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (set forth on the signature page
contained in Part II of this Registration
Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii)To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in this Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated
by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on
this 20th day of May 1999.
EL PASO ENERGY CORPORATION
By: /s/ William A. Wise
------------------------------
William A. Wise
Chairman of the Board,
President
and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby
authorizes H. Brent Austin and Britton White, Jr., and each of
them, as attorneys-in-fact with full power of substitution, to
execute in the name and on behalf of such person, individually
and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all
post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates as
indicated.
----------------------------------------------------------------
Signature Title Date
----------------------------------------------------------------
/s/ William A. Wise Chairman of the Board, May 20, 1999
-------------------- President, Chief
William A. Wise Executive Officer and
Director
/s/ H. Brent Austin Executive Vice May 20, 1999
------------------- President
H. Brent Austin and Chief Financial
Officer
/s/ Jeffrey I. Beason Vice President and May 20, 1999
--------------------- Controller
Jeffrey I. Beason (Chief Accounting
Officer)
/s/ Byron Allumbaugh Director May 20, 1999
----------------------
Byron Allumbaugh
/s/ Juan Carlos Braniff Director May 20, 1999
----------------------
Juan Carlos Braniff
/s/ Peter T. Flawn Director May 20, 1999
----------------------
Peter T. Flawn
/s/ James F. Gibbons Director May 20, 1999
---------------------
James F. Gibbons
/s/ Ben F. Love Director May 20, 1999
---------------------
Ben F. Love
/s/ Kenneth L. Smalley Director May 20, 1999
---------------------
Kenneth L. Smalley
/s/ Malcolm Wallop Director May 20, 1999
---------------------
Malcolm Wallop
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
-------- -----------
5.1 Opinion of Andrews & Kurth L.L.P. regarding the
legality of the securities being registered
hereunder.
10.1 El Paso Energy Corporation Deferred Compensation
Plan, Amended and Restated effective as of December
3, 1998.
23.1 Consent of Counsel (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (set forth on the signature page
contained in Part II of this Registration
Statement).
EXHIBIT 5
[LETTERHEAD OF ANDREWS & KURTH L.L.P.]
May 20, 1999
Board of Directors
El Paso Energy Corporation
El Paso Energy Building
1001 Louisiana Street
Houston, Texas 77002
Gentlemen:
We have acted as special counsel to El Paso Energy
Corporation, a Delaware corporation (the "Company"), in
connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), of the registration
statement on Form S-8 filed by the Company with the Commission on
May 20, 1999 (the "Registration Statement"), relating to the
registration of up to $50,000,000 aggregate principal amount of
unsecured obligations of the Company under the El Paso Energy
Deferred Compensation Plan (the "Plan") to pay deferred
compensation in the future in accordance with the terms of the
Plan (the "Obligations").
In arriving at the opinion expressed below, we have
examined the Company's Certificate of Incorporation and By-laws,
each as amended to date, the Registration Statement, and the
originals or copies certified or otherwise identified to our
satisfaction of such other instruments and other certificates of
public officials, officers and representatives of the Company and
such other persons, and we have made such investigations of law,
as we have deemed appropriate as a basis for the opinions
expressed below.
In rendering the opinion expressed below, we have
assumed and have not verified (i) the genuineness of the
signatures on all documents that we have examined, (ii) the
conformity to the originals of all documents supplied to us as
certified or photostatic or faxed copies, (iii) the authenticity
of the originals of such documents and (iv) as to the forms of
all documents in respect of which forms were filed with the
Commission as exhibits to the Registration Statement, the
conformity in all material respects of such documents to the
forms thereof that we have examined.
Based on the foregoing, and subject to the limitations
and exceptions set forth below, it is our opinion that the
Obligations, when issued in accordance with the terms of the
Plan, will be validly issued, fully paid and nonassessable.
For the purposes of the opinion expressed above, we
have assumed that the Registration Statement, and any amendments
thereto (including post-effective amendments), will have become
effective.
We express no opinion other than as to the federal laws
of the United States of America and the Delaware General
Corporation laws. We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the
reference to this firm under the heading "Legal Matters" in the
prospectus forming part of the Registration Statement without
admitting that we are "experts" under the Act, or the rules and
regulations of the Commission issued thereunder, with respect to
any part of the Registration Statement, including this exhibit.
This opinion is rendered solely for your benefit in connection
with the above matter and may not be relied upon in any manner by
any other person or entity without our express written consent.
Very truly yours,
/s/ Andrews & Kurth L.L.P.
EXHIBIT 10.1
EL PASO ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
Amended and Restated Effective as of December 3, 1998
<PAGE>
TABLE OF CONTENTS
SECTION 1 PURPOSE............................................... 1
1.1 Purpose............................................... 1
SECTION 2 ADMINISTRATION........................................ 1
2.1 Management Committee.................................. 1
SECTION 3 PARTICIPANTS.......................................... 1
3.1 Participants.......................................... 1
SECTION 4 DEFERRALS............................................. 2
4.1 Eligible Compensation................................. 2
4.2 Deferred Payment of Base Salary....................... 2
4.3 Deferred Payment of Cash Incentive Awards............. 3
4.4 Deferred Payment for Performance Units................ 3
4.5 Deferred Payment for Equity Awards.................... 3
4.6 Deferred Payment for Amounts Awarded Under Other
Plans............................................... 3
4.7 Memorandum Account and Subaccounts.................... 4
4.8 Prior Deferrals....................................... 5
4.9 Payment of Deferred Eligible Compensation............. 5
4.10 Acceleration of Payment of Deferred Eligible
Compensation........................................ 5
SECTION 5 GENERAL PROVISIONS.................................... 6
5.1 Unfunded Obligation................................... 6
5.2 Discretionary Investment by Company................... 6
5.3 Beneficiary........................................... 6
5.4 Permanent Disability.................................. 7
5.5 Incapacity of Participant or Beneficiary.............. 7
5.6 Nonassignment......................................... 7
5.7 No Right to Continued Employment...................... 7
5.8 Withholding Taxes..................................... 7
5.9 Termination and Amendment............................. 8
5.10 Applicable Law....................................... 8
5.11 Compliance with Securities Laws...................... 8
5.12 Source of Common Stock and Adjustments............... 8
5.13 Regulatory Approvals and Listing..................... 9
<PAGE>
EL PASO ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
Amended and Restated Effective as of December 3, 1998
SECTION 1 PURPOSE
1.1 Purpose
The purpose of the El Paso Energy Corporation Deferred
Compensation Plan (the "Plan") is to permit the
executives and certain key management employees of El
Paso Energy Corporation (the "Company") and its
subsidiaries to defer all or some part of their
Eligible Compensation (as defined below) in order for
the Company to attract and retain exceptional
personnel.
SECTION 2 ADMINISTRATION
2.1 Management Committee
The Plan shall be administered by a management
committee (the "Management Committee") consisting of
the Chief Executive Officer and such other senior
officers as he or she shall designate. Subject to the
Compensation Committee (the "Compensation Committee")
of the Company's Board of Directors (the "Board"), the
Management Committee shall interpret the Plan,
prescribe, amend and rescind rules relating to it,
select eligible Participants, and take all other
actions necessary for its administration, which actions
shall be final and binding upon all Participants. No
member of the Management Committee shall vote on any
matter that pertains solely to himself or herself.
SECTION 3 PARTICIPANTS
3.1 Participants
The Management Committee shall determine and designate
the executives and key management employees of the
Company and its subsidiaries who are eligible to defer
Eligible Compensation under the Plan (the
"Participants"). Members of the Board who are full-time
executives of the Company shall be eligible to
participate in the Plan.
SECTION 4 DEFERRALS
4.1 Eligible Compensation
For purposes of this Plan the term "Eligible
Compensation" means the following:
a. "Base Salary" is the Participant's base salary
being paid for the year or partial year, exclusive
of bonuses or other forms of cash incentive
compensation for the year;
b. "Cash Incentive Award" is an annual incentive
award made under the Company's Incentive
Compensation Plan or an annual cash incentive
award under a similar annual incentive plan
maintained by the Company or a subsidiary of the
Company, as applicable;
c. Payment for "Performance Units" which are granted
pursuant to the Company's Omnibus Compensation
Plan or other similar performance unit plan
maintained by the Company or a subsidiary of the
Company, as applicable;
d. "Equity Award" is a Participant's award of
nonqualified stock options, stock appreciation
rights, restricted stock, or other equity-based
compensation granted pursuant to the terms and
conditions of the applicable Company plan from
which such awards were made; and
e. Compensation otherwise payable pursuant to the
terms of other plans which the Company or its
subsidiaries may from time to time maintain,
including but not limited to, the supplemental RSP
benefits under the Company's Supplemental Benefit
Plan, as may be amended from time to time.
4.2 Deferred Payment of Base Salary
Prior to January 1 of any year (or, with respect to
individuals who first become Participants during a year, on
or before the date on which they become Participants) each
Participant may elect to have the payment of all or a
portion of his or her Base Salary for the year beginning
January 1 (or, if later, so much of the year as commences on
the day following the date on which the individual becomes a
Participant) deferred until his or her retirement, death,
Permanent Disability (as defined below), resignation or
termination of employment with the Company and its
subsidiaries, or until any other specified time that is
determined by the Management Committee. The minimum amount
that may be so deferred is $1,000. The election shall be
irrevocable and shall be made on a form prescribed by the
Management Committee. The election shall apply only to that
calendar year or partial year. If a Participant has not
made an election, the Base Salary paid to him or her for
that year shall be paid in accordance with the Company's
normal payroll practices.
4.3 Deferred Payment of Cash Incentive Awards
Each Participant may, at such time as the Management
Committee may determine, in its sole discretion, elect to
have the payment of all or a portion of his or her Cash
Incentive Award, if any, for the year deferred until the
Participant's retirement, death, Permanent Disability,
resignation or termination of employment with the Company
and its subsidiaries, or until any other specified time that
is determined by the Management Committee. The minimum
amount that may be so deferred is $1,000. The election
shall be irrevocable and shall be made on a form prescribed
by the Management Committee. The election shall apply only
to that year. If a Participant has not made an election,
any Cash Incentive Award granted to the Participant for that
year shall be paid pursuant to the terms of the applicable
annual incentive compensation plan under which the award was
made.
4.4 Deferred Payment for Performance Units
Each Participant may, prior to the vesting of
Performance Units and in a manner prescribed by the
Management Committee, elect to have all or a portion of the
lump-sum cash payment payable pursuant to the terms of the
applicable omnibus compensation plan or other performance
unit plan with respect to vested Performance Units deferred
until the Participant's retirement, death, Permanent
Disability, resignation or termination of employment with
the Company and its subsidiaries or until any other
specified time that is determined by the Management
Committee. The minimum amount that may be so deferred is
$1,000. The election shall be irrevocable and shall be made
on a form prescribed by the Management Committee. The
election shall apply only to the Performance Units that may
become vested with respect to that year. If a Participant
has not made an election, any cash payment for Performance
Units shall be paid pursuant to the applicable provisions of
the plan under which the Performance Units were granted.
4.5 Deferred Payment for Equity Awards
Each Participant may elect, at a time and in a manner
determined by the Management Committee and the plan
administrator of the plan from which Equity Awards are
granted, to have the payment of all or a portion of such
Equity Award deferred until his or her retirement, death,
Permanent Disability, resignation or termination of
employment with the Company and its subsidiaries, or until
any other specified time that is determined by the
Management Committee. The election shall be irrevocable and
shall be made on a form prescribed or accepted by the
Management Committee. If a Participant has not made an
election, any Equity Award granted to the Participant shall
be paid pursuant to the terms of the applicable Company plan
under which the award was made. All Equity Awards deferred
shall be credited to the Deferred Stock Account, unless the
Management Committee shall, in its sole discretion,
otherwise determine.
4.6 Deferred Payment for Amounts Awarded Under Other Plans
Participants may be allowed to irrevocably elect to
defer, in the sole discretion of the Management Committee,
amounts that would otherwise be payable under any other plan
maintained or which may be maintained by the Company or its
subsidiaries. Any such deferrals must be permitted pursuant
to the terms of such other plans. If an election is made
under another Company plan to have amounts deferred pursuant
to the terms of this Plan, the amount initially to be
credited as deferred under this Plan shall be determined as
provided in the applicable other plan of the Company.
Except as otherwise specifically provided in any such other
plan, from the date specified in the applicable election (or
if no such date is specified then from the date such
election is effective) until the date any deferred amount is
paid (or otherwise credited back to the applicable plan as
provided in applicable provisions of such plan which are
acceptable to the Management Committee), the provisions of
this Plan shall govern (i) the determination of the value of
amounts deferred, including the calculation (and, where
applicable, the disposition), of income, expenses, gains and
losses to be credited to such deferrals, and (ii) the terms
and conditions of the distribution of such deferred amounts.
4.7 Memorandum Account and Subaccounts
The Company shall establish a ledger account (the
"Memorandum Account") for each Participant who has elected
to defer the payment of any part of his or her Eligible
Compensation, for the purpose of reflecting the Company's
obligation to pay the deferred amount as provided in Section
4.9. Interest or other income, expense, gain or loss, as
applicable, shall accrue on the deferred amount to the date
of distribution, and shall be credited to the Memorandum
Account at the end of each calendar quarter or such other
periods as may be determined by the Management Committee.
The Management Committee shall determine the rate of
interest or method for determining other income, expense,
gain or losses periodically and in so doing may take into
account the earnings, losses, appreciation or depreciation
attributable to any discretionary investments made pursuant
to Section 5.2, including, but not limited to, any
investment direction from a Participant regarding amounts
credited to his or her Memorandum Account. A Memorandum
Account can consist of the following types of subaccounts:
a. "Interest Account" means a subaccount that is
credited with interest periodically at such times
and rates as may be determined by the Management
Committee in its sole discretion;
b. "Investment Account" means the subaccount that has
earnings/losses credited periodically based upon,
at least in part, the performance of certain
investment funds (and can include any other
subaccount other than the Deferred Stock Account)
made available from time to time by the Management
Committee, in its sole discretion;
c. "Deferred Stock Account" means the subaccount that
is credited with hypothetical shares of Company
common stock, par value three dollars ($3.00) per
share ("Common Stock"), and has earnings/losses
credited periodically based upon the performance
of the Common Stock, including, but not limited
to, the reinvestment of dividends and
distributions, if any, made on the Common Stock;
and
d. Such other subaccounts as the Management
Committee, in its sole discretion, shall determine
to create.
4.8 Prior Deferrals
Compensation which was deferred by a Participant under
the Company's Incentive Compensation Plan or Omnibus
Compensation Plan or a similar plan maintained by the
Company's former parent company shall be paid by the Company
pursuant to the terms of this Plan.
4.9 Payment of Deferred Eligible Compensation
Upon the retirement, death, Permanent Disability,
resignation, designated payment date, or termination of
employment of a Participant who has elected to defer any
portion of his or her Eligible Compensation for any year,
the Company shall pay to such Participant (or his or her
Beneficiary in the case of his or her death) an amount equal
to the balance of his or her Memorandum Account, plus
interest, income, expense, gain or loss, as applicable (at a
rate determined by the Management Committee pursuant to
Section 4.7), on the outstanding account balance to the date
of distribution and subject to approval of the Management
Committee, as follows:
(a) a lump-sum cash payment;
(b) a lump-sum Common Stock distribution, to the extent
the Participant has shares of Common Stock credited to
his or her Deferred Stock Account (subject to
applicable laws and regulations concerning the issuance
of such shares of Common Stock);
(c) a combination of (a) and (b) above; or
(d) in periodic installments (consisting of cash and/or
Common Stock (to the extent of the Participant's Deferred
Stock Account)) over a period of years to be determined
by the Participant at the time the deferral election is
made, or as otherwise provided by the Management
Committee in its sole discretion.
Unless otherwise elected at the time of deferral,
payment of deferred amounts shall commence or be made in
January of the year following the calendar year in which the
Participant retired, died, became Permanently Disabled,
resigned, or otherwise terminated employment.
4.10 Acceleration of Payment of Deferred Eligible
Compensation
The Management Committee, in its sole discretion, may
accelerate the payment of the unpaid balance of a
Participant's Memorandum Account in the event of the
Participant's retirement, death, Permanent Disability,
resignation or termination of employment, or upon its
determination that the Participant (or his or her
Beneficiary in the case of his or her death) has incurred a
severe financial hardship. The Management Committee in
making its determination may consider such factors and
require such information as it deems appropriate.
SECTION 5 GENERAL PROVISIONS
5.1 Unfunded Obligation
The deferred amounts to be paid to Participants
pursuant to this Plan are unfunded obligations of the
Company. The Company is not required to segregate any
monies from its general funds, to create any trusts, or to
make any special deposits with respect to this obligation.
Beneficial ownership of any investments, including trust
investments, which the Company may make to fulfill this
obligation shall at all times remain in the Company. Any
investments and the creation or maintenance of any trust or
memorandum accounts shall not create or constitute a trust
or a fiduciary relationship between the Management Committee
or the Company and a Participant, or otherwise create any
vested or beneficial interest in any Participant or his or
her Beneficiary or his or her creditors in any assets of the
Company whatsoever. The Participants shall have no claim
against the Company for any changes in the value of any
assets which may be invested or reinvested by the Company
with respect to this Plan.
5.2 Discretionary Investment by Company
The Management Committee may direct that an amount
equal to the deferred amounts shall be invested by the
Company as the Management Committee, in its sole discretion,
shall determine. The Management Committee may, in its sole
discretion, determine that all or some portion of an amount
equal to the deferred amounts shall be paid into one or more
grantor trusts to be established by the Company of which it
shall be the beneficiary, and to the assets of which it
shall become entitled as and to the extent that Participants
receive benefits under this Plan. The Management Committee
may designate an investment advisor(s) to direct investments
and reinvestments of funds, including investments of any
grantor trusts hereunder, and, subject to Section 4.5, may
consider (but shall not be bound by) investment direction
from Participants regarding the amounts credited to his or
her Memorandum Account.
5.3 Beneficiary
The term "Beneficiary" shall mean the person or persons
to whom payments are to be made pursuant to the terms of the
Plan in the event of the Participant's death. The
designation shall be on a form provided by the Management
Committee, executed by the Participant, and delivered to the
Committee. A Participant may change his Beneficiary
designation at any time. A designation by a Participant
under the Burlington Resources Inc. Deferred Compensation
Plan shall remain in effect under this Plan unless it is
revoked or changed under this Plan. If no Beneficiary is
designated, the designation is ineffective, or in the event
the Beneficiary dies before the balance of the Memorandum
Account is paid, the balance shall be paid to the
Participant's spouse or lineal descendants, to the
Participant's estate (unless the Management Committee for a
given year has designated investment in an annuity, in which
case the payment options selected by the Participant with
respect thereto shall govern).
5.4 Permanent Disability
A Participant shall be deemed to have become disabled
for purposes of this Plan if the Management Committee finds,
upon the basis of medical evidence satisfactory to it, that
the Participant is totally disabled, whether due to physical
or mental condition, so as to be prevented from engaging in
further employment by the Company or any of its subsidiaries
and that such disability will be permanent and continuous
during the remainder of his or her life.
5.5 Incapacity of Participant or Beneficiary
If the Management Committee finds that any Participant
or Beneficiary to whom a payment is payable under the Plan
is unable to care for his or her affairs because of illness
or accident or is under a legal disability, any payment due
(unless a prior claim therefore shall have been made by a
duly appointed legal representative) at the discretion of
the Committee, may be paid to the spouse, child, parent or
brother or sister of such Participant or Beneficiary or to
any person whom the Committee has determined has incurred
expense for such Participant or Beneficiary. Any such
payment shall be a complete discharge of the obligations of
the Company under the provisions of the Plan.
5.6 Nonassignment
The right of a Participant or Beneficiary to the
payment of any amounts under the Plan may not be assigned,
transferred, pledged or encumbered nor shall such right or
other interests be subject to attachment, garnishment,
execution or other legal process.
5.7 No Right to Continued Employment
Nothing in the Plan shall be construed to confer upon
any Participant any right to continued employment with the
Company or a subsidiary, nor interfere in any way with the
right of the Company or a subsidiary to terminate the
employment of such Participant at any time without assigning
any reason therefor.
5.8 Withholding Taxes
Provision shall be made for the withholding of taxes
under the Federal Insurance Contributions Act at the time of
vesting of benefits under the Plan and appropriate income
taxes shall be withheld from payments made to Participants
pursuant to this Plan, including if so determined by the
Management Committee, with respect to any payment otherwise
to be made in the form of Company Common Stock, but not
limited to, withholding a sufficient number of shares of
Company Common Stock to satisfy the minimum required
federal, state and local income and employment tax
withholding obligations associated with such distribution;
with the value of such shares withheld to be determined by
using the fair market value (average of high and low selling
prices of the Company Common Stock, as reported in the NYSE-
Composite Transactions by The Wall Street Journal) on the
day prior to day the distribution is made, or if the New
York Stock Exchange is closed on said day, the next
succeeding business day.
5.9 Termination and Amendment
The Board or the Compensation Committee may from time
to time amend, suspend or terminate the Plan, in whole or in
part, and if the Plan is suspended or terminated, the Board
or the Compensation Committee may reinstate any or all of
its provisions. The Management Committee may amend the Plan
provided that it may not suspend or terminate the Plan,
substantially increase the administrative cost of the Plan
or the obligations of the Company, or expand the
classification of employees who are eligible to participate
in the Plan. No amendment, suspension or termination may
impair the right of a Participant or his designated
beneficiary to receive the deferred compensation benefit
accrued prior to the effective date of such amendment,
suspension or termination. The Board amended and restated
the Plan effective as of December 3, 1998. The Board had
previously amended and restated the Plan effective as of
August 1, 1998, in connection with the reorganization of the
Company into a holding company structure whereby El Paso
Energy Corporation became the publicly held company and El
Paso Natural Gas Company became a wholly owned subsidiary.
This Plan was assumed by El Paso Energy Corporation pursuant
to an Assignment and Assumption Agreement effective as of
August 1, 1998, by and between El Paso Energy Corporation
and El Paso Natural Gas Company.
5.10 Applicable Law
The Plan shall be construed and governed in accordance
with the laws of the State of Texas, except to the extent
preempted by applicable federal law.
5.11 Compliance with Securities Laws
The Company's intention is that, so long as any of the
Company's equity securities are registered pursuant to
Section 12(b) or 12(g) of the Securities Exchange Act of
1934, as amended, this Plan shall be operated in compliance
with Section 16(b) thereof, and the rules and regulations
promulgated thereunder; and, if any Plan provision or
transaction is found not to comply with Section 16(b), that
provision or transaction, as the case may be, shall be
deemed null and void. Notwithstanding anything in the Plan
to the contrary, the Management Committee, in its absolute
discretion, may bifurcate the Plan so as to restrict, limit
or condition the use of any provision of the Plan to
Participants who are subject to Section 16(b) without so
restricting, limiting or conditioning the Plan with respect
to other Participants.
5.12 Source of Common Stock and Adjustments
Any shares of Common Stock delivered pursuant to this
Plan shall consist of Common Stock held in the Company's
treasury or out of authorized but unissued shares of the
Company, or partly out of each, as shall be determined by
the Management Committee or the Company, as appropriate;
provided such shares are available pursuant to original plan
from which they were deferred. Shares of Common Stock
deferred under this Plan as a result of an Equity Award are
subject to the terms and conditions of the plan from which
Equity Award was originally granted.
In the event of a recapitalization, stock split, stock
dividend, exchange of shares, merger, reorganization, change
in corporate structure or shares of the Company or similar
event, the Board, upon the recommendation of the Management
Committee, may make appropriate adjustments in the number of
shares credited to each Participant's Deferred Stock
Account.
5.13 Regulatory Approvals and Listing
The Company shall not be required to issue any
certificate for shares of Common Stock upon the distribution
of Common Stock under the Plan prior to: (a) obtaining any
approval or ruling from the Securities and Exchange
Commission, the Internal Revenue Service or any other
governmental agency which the Company, in its sole
discretion, shall determine to be necessary or advisable;
(b) listing of such shares on any stock exchange on which
the Common Stock may then be listed; or (c) completing any
registration or other qualification of such shares under any
federal or state laws, rulings or regulations of any
governmental body which the Company, in its sole discretion,
shall determine to be necessary or advisable.
All certificates for shares of Common Stock delivered
under the Plan shall also be subject to such stop-transfer
orders and other restrictions as the Management Committee
may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any
stock exchange upon which Common Stock is then listed and
any applicable federal or State securities laws, and the
Management Committee may cause a legend or legends to be
placed on any such certificates to make appropriate
reference to such restrictions. The foregoing provisions of
this paragraph shall not be effective if and to the extent
that the shares of Common Stock delivered under the Plan are
covered by an effective and current registration statement
under the Securities Act of 1933, as amended, or if and so
long as the Management Committee determines that application
of such provisions as no longer required or desirable. In
making such determination, the Management Committee may rely
upon an opinion of counsel for the Company.
IN WITNESS WHEREOF, the Company has caused the Plan to
be amended and restated effective as of December 3, 1998.
EL PASO ENERGY CORPORATION
By /s/ Joel Richards
____________________________
Title: Executive Vice President
ATTEST:
By /s/ David L. Siddall
_____________________________
Title: Corporate Secretary
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in
this Registration Statement on Form S-8 of our report dated
March 9, 1999 relating to the consolidated financial
statements and financial statement schedule, which appears
in El Paso Energy Corporation's Annual Report on Form 10-K
for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Houston, Texas
May 20, 1999
