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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY , 1998
REGISTRATION NOS. 333-42713, -01, -02 AND -03
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-14617
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
AMENDMENT NO. 1 TO REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT NO. 1
UNDER THE SECURITIES ACT OF 1933
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EL PASO NATURAL GAS COMPANY
EL PASO ENERGY CAPITAL TRUST I
EL PASO ENERGY CAPITAL TRUST II
EL PASO ENERGY CAPITAL TRUST III
(Exact name of registrant as specified in its charter)
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DELAWARE 74-0608280
DELAWARE 76-6133070
DELAWARE 76-6133071
DELAWARE 76-6133072
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
BRITTON WHITE, JR.
EL PASO ENERGY BUILDING EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
1001 LOUISIANA EL PASO ENERGY BUILDING
HOUSTON, TEXAS 77002 1001 LOUISIANA
(713) 757-2131 HOUSTON, TEXAS 77002
(Address, including zip code, and telephone number, (713) 757-2131
including area code, of registrant's principal (Name, address, including zip code, and telephone
executive offices) number, including area code, of agent for service)
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Copies to:
G. MICHAEL O'LEARY
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4360
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions and other factors.
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If the only securities being registered on this form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this registration statement is a combined prospectus relating also
to approximately $250 million of securities previously registered pursuant to
the Registration Statement on Form S-3 (File No. 333-14617) and not issued,
which other registration statement, as amended, previously filed by El Paso
Natural Gas Company has been declared effective.
This registration statement constitutes post-effective amendment No. 1 to
the Registration Statement on Form S-3 (File No. 333-14617) pursuant to which
the total amount of securities previously registered thereunder may be offered
as Senior Debt Securities, Subordinated Debt Securities, Preferred Stock of EPG
and Common Stock of EPG without limitation as to class of securities, together
with the securities registered hereunder, through the use of the combined
Prospectus included herein. In the event any such previously registered
securities is offered prior to the effective date of this registration
statement, they will not be included in any Prospectus hereunder.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than selling
or underwriting discounts and commissions, to be incurred by EPG in connection
with the issuance and distribution of the Securities being registered. All
amounts shown are estimated except the Commission registration fee.
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Securities and Exchange Commission registration fee......... $191,750
Blue Sky expenses, including legal fees..................... *
Printing and engraving expenses............................. *
Legal fees and expenses..................................... *
Rating agency fees.......................................... *
Accounting fees and expenses................................ *
Trustee's fees and expenses................................. *
Miscellaneous............................................... *
--------
Total............................................. $ *
========
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* To be furnished by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement in connection with specified actions, rules, or
proceedings, whether civil, criminal, administrative, or investigative (other
than action by or in the right of the corporation -- a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement, or otherwise.
Article X of EPG's By-laws require indemnification to the full extent
permitted under Delaware law as from time to time in effect. Subject to any
restrictions imposed by Delaware law, the By-laws of EPG provide an
unconditional right to indemnification for all expense, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes, or penalties
and amounts paid in settlement) actually and reasonably incurred or suffered by
any person in connection with any actual or threatened proceeding (including, to
the extent permitted by law, any derivative action) by reason of the fact that
such person is or was serving as a director, officer, or employee of EPG or
that, being or having been such a director or officer or an employee of EPG,
such person is or was serving at the request of EPG 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 of EPG also
provide that EPG 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 Delaware General Corporation Law 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
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dividends or unlawful stock purchases or redemptions, or (iv) any transaction
from which the director derived an improper personal benefit.
Article 10 of EPG's Restated Certificate of Incorporation, as amended,
provides that to the full extent that the Delaware General Corporation Law, as
it now exists or may hereafter be amended, permits the limitation or elimination
of the liability of directors, a director of EPG shall not be liable to EPG 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 EPG for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
EPG maintains directors' and officers' liability insurance which provides
for payment, on behalf of the directors and officers of EPG and its
subsidiaries, of certain losses of such persons (other than matters uninsurable
under law) arising from claims, including claims arising under the Securities
Act, for acts or omissions by such persons while acting as directors or officers
of EPG and/or its subsidiaries, as the case may be.
Reference is made to Exhibits 1.1, 1.2 and 1.3 hereto, respectively, which
contain provisions for indemnification of EPG, and its directors, officers, and
any controlling persons, against certain liabilities for information furnished
by the underwriters and/or agents, as applicable, expressly for use in the
Prospectus Supplements.
ITEM 16. EXHIBITS
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EXHIBIT NO. EXHIBIT
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1.1 -- Form of EPG Debt Securities Underwriting Agreement**
1.2 -- Form of EPG Equity Securities Underwriting Agreement**
1.3 -- Form of Trust Preferred Securities Underwriting
Agreement**
4.1 -- Indenture dated November 13, 1996 between EPG and The
Chase Manhattan Bank, as Trustee (incorporated by
reference to Exhibit 4.1 of EPG's Current Report on Form
8-K, File No. 1-2700, filed November 13, 1996)
4.2 -- Form of Subordinated Indenture between EPG and The Chase
Manhattan Bank, as Trustee (including form of
subordinated security)*
4.3 -- Certificate of Trust of El Paso Energy Capital Trust I*
4.4 -- Declaration of Trust of El Paso Energy Capital Trust I,
dated as of December 10, 1997*
4.5 -- Certificate of Trust of El Paso Energy Capital Trust II*
4.6 -- Declaration of Trust of El Paso Energy Capital Trust II,
dated as of December 10, 1997*
4.7 -- Certificate of Trust of El Paso Energy Capital Trust III*
4.8 -- Declaration of Trust of El Paso Energy Capital Trust III,
dated as of December 10, 1997*
4.9 -- Form of Amended and Restated Declaration of Trust
(including form of Trust Preferred Security) (Agreements
for El Paso Energy Capital Trust I, El Paso Energy
Capital Trust II and El Paso Energy Capital Trust III are
substantially identical except for names and dates)**
4.10 -- Form of Trust Preferred Securities Guarantee Agreement to
be issued by EPG (Agreements for El Paso Energy Capital
Trust I, El Paso Energy Capital Trust II and El Paso
Energy Capital Trust III are substantially identical
except for names and dates)**
4.11 -- Restated Certificate of Incorporation of EPG
(incorporated by reference to Exhibit 3.A of EPG's Form
10-K for the fiscal year ended December 31, 1991, File
No. 1-2700, filed January 29, 1992); Certificate of
Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock of EPG, dated July 7, 1992
(incorporated by reference to Exhibit 3.A.1 of EPG's Form
10-K for the fiscal year ended December 31, 1992, File
No. 1-2700, filed February 3, 1993)
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EXHIBIT NO. EXHIBIT
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4.12 -- By-laws of EPG, as amended October 22, 1997 (incorporated
by reference to Exhibit 3.B of EPG's Form 10-Q for the
quarter ended September 30, 1997, File No. 1-2700, filed
November 13, 1997)
4.13 -- Amended and Restated Shareholder Rights Agreement, dated
as of July 23, 1997, between EPG and The First National
Bank of Boston, as Rights Agent (incorporated by
reference to Exhibit 1 of EPG's Form 8-A/A, File No.
1-2700, filed August 13, 1997)
5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the Common Stock, Preferred Stock, Senior Debt
Securities, Subordinated Debt Securities and Trust
Guarantee**
5.2 -- Opinion of Potter Anderson & Corroon as to the legality
of the Trust Preferred Securities**
8.1 -- Opinion of Andrews & Kurth L.L.P. as to certain federal
income tax matters**
12.1 -- Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred
and Preference Stock Dividend Requirements*
23.1 -- Consent of Coopers & Lybrand L.L.P.*
23.2 -- Consent of Andrews & Kurth L.L.P. (included in Exhibits
5.1 and 8.1)
23.3 -- Consent of Potter Anderson & Corroon (included in Exhibit
5.2)
24.1 -- Powers of Attorney (included on signature page)
25.1 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank*
25.2 -- Form T-1 Statement of Eligibility of Chase Manhattan Bank
Delaware**
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* Previously filed.
** To be filed as an exhibit to EPG's Current Report on Form 8-K in connection
with and prior to a specific offering.
ITEM 17. 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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(c) 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(l)(a) and A(l)(b) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
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(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 Registration hereby undertakes that, for purposes of
determining any liability under the Securities Act, such filing of EPG's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 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 herein, 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 provisions described in Item 15 above, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 15, 1998.
EL PASO NATURAL GAS COMPANY
By: /s/ WILLIAM A. WISE*
----------------------------------
William A. Wise
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates as indicated.
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SIGNATURE TITLE DATE
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/s/ WILLIAM A. WISE* Chairman of the Board, January 15, 1998
- ----------------------------------------------------- Chief Executive Officer
William A. Wise and Director
/s/ RICHARD OWEN BAISH* President January 15, 1998
- -----------------------------------------------------
Richard Owen Baish
/s/ H. BRENT AUSTIN Executive Vice President January 15, 1998
- ----------------------------------------------------- and Chief Financial
H. Brent Austin Officer
/s/ JEFFREY I. BEASON* Vice President and January 15, 1998
- ----------------------------------------------------- Controller (Chief
Jeffrey I. Beason Accounting Officer)
/s/ BYRON ALLUMBAUGH* Director January 15, 1998
- -----------------------------------------------------
Byron Allumbaugh
/s/ JUAN CARLOS BRANIFF* Director January 15, 1998
- -----------------------------------------------------
Juan Carlos Braniff
/s/ PETER T. FLAWN* Director January 15, 1998
- -----------------------------------------------------
Peter T. Flawn
/s/ JAMES F. GIBBONS* Director January 15, 1998
- -----------------------------------------------------
James F. Gibbons
/s/ BEN F. LOVE* Director January 15, 1998
- -----------------------------------------------------
Ben F. Love
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/s/ KENNETH L. SMALLEY* Director January 15, 1998
- -----------------------------------------------------
Kenneth L. Smalley
/s/ MALCOLM WALLOP* Director January 15, 1998
- -----------------------------------------------------
Malcolm Wallop
*By: /s/ H. BRENT AUSTIN January 15, 1998
------------------------------------------------
H. Brent Austin
(Pursuant to a power of attorney filed with this
Registration Statement on December 19, 1997)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust I certifies that it has reasonable grounds to believe
that it meets the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 15, 1998.
El Paso Energy Capital Trust I
By: El Paso Natural Gas Company, as
Sponsor
By: /s/ H. BRENT AUSTIN
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H. Brent Austin
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust II certifies that it has reasonable grounds to believe
that it meets the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 15, 1998.
El Paso Energy Capital Trust II
By: El Paso Natural Gas Company, as
Sponsor
By: /s/ H. BRENT AUSTIN
----------------------------------
H. Brent Austin
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust III certifies that it has reasonable grounds to
believe that it meets the requirements for filing on Form S-3 and has duly
caused this Amendment No. 1 to this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on January 15, 1998.
El Paso Energy Capital Trust III
By: El Paso Natural Gas Company, as
Sponsor
By: /s/ H. BRENT AUSTIN
----------------------------------
H. Brent Austin
Executive Vice President
and Chief Financial Officer
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