0000916641-01-501167.txt : 20011008
0000916641-01-501167.hdr.sgml : 20011008
ACCESSION NUMBER: 0000916641-01-501167
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20010919
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: LOUIS DREYFUS NATURAL GAS CORP
CENTRAL INDEX KEY: 0000912264
STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311]
IRS NUMBER: 731098614
STATE OF INCORPORATION: OK
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-45331
FILM NUMBER: 1740447
BUSINESS ADDRESS:
STREET 1: 14000 QUAIL SPRINGS PKWY
STREET 2: STE 600
CITY: OKLAHOMA CITY
STATE: OK
ZIP: 73134
BUSINESS PHONE: 4057491300
MAIL ADDRESS:
STREET 1: 14000 QUAIL SPRINGS PKWY
STREET 2: STE 600
CITY: OKLAHOMA CITY
STATE: OK
ZIP: 73134
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: DOMINION RESOURCES INC /VA/
CENTRAL INDEX KEY: 0000715957
STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911]
IRS NUMBER: 541229715
STATE OF INCORPORATION: VA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: 120 TREDEGAR STREET
STREET 2: P O BOX 26532
CITY: RICHMOND
STATE: VA
ZIP: 23219
BUSINESS PHONE: 8048192000
MAIL ADDRESS:
STREET 1: P O BOX 26532
STREET 2: 120 TREDEGAR STREET
CITY: RICHMOND
STATE: VA
ZIP: 23219
SC 13D
1
dsc13d.txt
SCHEDULE 13-D
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Louis Dreyfus Natural Gas Corp.
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
546011 10 7
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(CUSIP Number)
James F. Stutts, Esq.
Vice President and General Counsel
Patricia A. Wilkerson
Vice President and Corporate Secretary
Dominion Resources, Inc.
120 Tredegar Street
Richmond, Virginia 23219
(804) 819-2000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 9, 2001
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ]
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Dominion Resources, Inc. (54-1229715)
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
BK and WC
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Virginia
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7 SOLE VOTING POWER
0
NUMBER OF
SHARES ------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 19,150,000(1)
EACH
REPORTING -----------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
0
------------------------------------------
10 WITH SHARED DISPOSITIVE POWER
19,150,000(1)
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,150,000(1)
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X]
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.6 %
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
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(1) Includes 19,150,000 shares of Common Stock that may be deemed to be
beneficially owned by Dominion Resources, Inc. pursuant to the Principal
Shareholders Agreement described in Item 6 below.
ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, par value $0.01 per share (the
"Company Common Stock"), of Louis Dreyfus Natural Gas Corp., an Oklahoma
corporation (the "Company"). The Company's principal corporate offices are
located at 14000 Quail Springs Parkway, Suite 600, Oklahoma City, Oklahoma
73134.
ITEM 2. IDENTITY AND BACKGROUND
(a) - (c) This statement is being filed by Dominion Resources, Inc., a
corporation organized under the laws of Virginia ("Dominion"). Dominion's
principal corporate offices are located at 120 Tredegar Street, Richmond,
Virginia 23219. Dominion is one of the nation's largest producers of energy.
Dominion's 22,000-megawatt generation portfolio is expected to grow to more than
28,000 megawatts by 2005. In addition to its existing 2.8 trillion cubic feet
equivalent (Tcfe) of natural gas reserves and 315 billion cubic feet equivalent
(Bcfe) of annual production, Dominion also owns and operates 7,600 miles of
natural gas transmission pipeline with a delivery capability of 6.3 billion
cubic feet per day. Dominion also operates the nation's largest underground
natural gas storage system with more than 950 billion cubic feet of storage
capacity. Dominion also serves nearly four million retail natural gas and
electric customers in five states. Dominion has about 16,000 employees. The
names, business addresses and principal occupation or employment (and the name,
principal business and address of any corporation or other organization in which
such employment is conducted) of each of the persons specified by Instruction C
of Schedule 13D are set forth on Schedule I.
(d) - (e) Neither Dominion, nor to the knowledge of Dominion, any of the
persons specified in Schedule I has, during the last five years, been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors)
nor has been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) The citizenship of each of the persons specified by Instruction C of
the Schedule 13D is set forth on the attached Schedule I.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
This Schedule 13D is filed as a result of the Principal Shareholders
Agreement described in Item 6 of this Schedule 13D. The consideration for the
shares of Company Common Stock to be purchased by Dominion pursuant to the
Principal Shareholders Agreement is cash and Dominion common stock, no par value
(the "Dominion Common Stock") . No other funds were required in connection with
entering into the Principal Shareholders Agreement.
Dominion expects initially to finance the cash component of the merger
described in Item 4 of this Schedule 13D with a bridge loan or short term
commercial paper. After the merger, Dominion plans to replace the short term
financing with a combination of trust preferred securities and long term debt
issued by either Dominion or its wholly owned subsidiary Consolidated Natural
Gas Company.
ITEM 4. PURPOSE OF THE TRANSACTION
On September 9, 2001, Dominion, Consolidated Natural Gas Company, a wholly
owned subsidiary of Dominion ("CNG"), and the Company entered into an Agreement
and Plan of Merger, which they subsequently amended pursuant to Amendment No. 1
to the Agreement and Plan of Merger dated as of September 17, 2001 (as amended,
the "Merger Agreement"). At the effective time (the "Effective Time") of the
merger (the "Merger"), pursuant to the Merger Agreement, the Company will be
merged with and into a direct wholly owned subsidiary of Dominion (the "Merger
Sub")organized solely for purposes of the Merger. Merger Sub will be the
surviving corporation (the "Surviving Corporation") in the merger. Following
the Merger, the Dominion will contribute all of the outstanding stock of the
Surviving Corporation to CNG and it will become wholly owned by CNG.
Upon consummation of the Merger, each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time (as defined in the
Merger Agreement), other than shares of Company Common Stock owned by Dominion
and its subsidiaries and by the Company, including treasury stock, which shall
be cancelled, and shares of Company Common Stock held by shareholders who
validly exercise their appraisal rights under Oklahoma law, will be converted
into (i) the right to receive $20.00 in cash and (ii) 0.3226 of a share of
Dominion Common Stock, subject to adjustment as provided in the Merger
Agreement.
The certificate of incorporation and bylaws of Merger Sub immediately
before the Effective Time of the Merger will be the certificate of incorporation
and bylaws of the Surviving Corporation until amended. The directors and
officers of Merger Sub at the Effective Time of the Merger will be the directors
and officers of the Surviving Corporation.
The closing of the Merger will occur promptly after the day on which the
last condition to completing the Merger is satisfied or waived, or at such other
time as Dominion and the Company may agree. The consummation of the Merger is
subject to a number of conditions, including (i) compliance with the pre-merger
notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, (ii) approval of the Merger Agreement and the transactions
contemplated thereby by the holders of a majority of the outstanding shares of
Company Common Stock, (iii) the Registration Statement (as defined in the Merger
Agreement) becoming effective and (iv) the receipt of tax opinions from legal
counsel to the Company and Dominion to the effect that the Merger will qualify
as a reorganization under section 368(a) of the Internal Revenue Code of 1986,
as amended.
Pursuant to the Merger Agreement, the Company must pay, in certain
circumstances upon termination of the Merger Agreement, a fee of $70 million in
cash (the "Termination Fee") to Dominion. The Company has agreed to pay the
Termination Fee if (i) the Merger Agreement is terminated by the Company in
order to accept a superior proposal, (ii) the Merger Agreement is terminated by
Dominion because: (a) the Company's Board withdraws, modifies or changes in a
manner adverse to Dominion its recommendation of the Merger, or (b) the Company
breaches its no solicitation obligation in a material respect and Dominion is
adversely affected thereby; (iii) the Merger Agreement is terminated: (a) by
Dominion because the Company breaches its representations or covenants in the
Merger Agreement, (b) by the Company because the Merger did not occur by March
31, 2002, or (c) by the Company or Dominion because the Company's shareholders
did not approve the Merger, and (A) there was outstanding another acquisition
proposal, (B) Dominion was not in material breach of the Merger Agreement, (C)
the Company Shareholders did not approve the Merger, (D) the Company Board did
not withdraw, modify or change its recommendation of the Merger, and (E) within
twelve months after termination, the Company enters into an agreement which is
ultimately consummated or consummates a transaction with the proponent of the
acquisition proposal or another party pursuant to a superior acquisition
proposal.
The preceding summary of the Merger Agreement does not purport to be
complete. Reference is made to the full text of the Merger Agreement that is
filed as an exhibit to this statement and is incorporated in this Schedule 13D
by this reference.
In connection with execution of the Merger Agreement, the Company entered
into a gas sale agreement (the "Gas Sale Agreement") with Dominion Exploration &
Production, a wholly owned subsidiary of Dominion. The Gas Sale Agreement calls
for the Company to deliver approximately 48 billion cubic feet ("Bcf")of natural
gas at the rate of approximately 4 Bcf per month for twelve months beginning in
January 2002 to Dominion Exploration & Production at a weighted average price of
approximately $3.03 per million cubic feet. The Gas Sale Agreement will survive
any termination of the Merger Agreement. The 48 Bcf of gas subject to this Gas
Sale Agreement represents approximately 3% of the Company's estimated proved
reserves as of June 30, 2001.
Except as set forth in this Item 4 or as provided in the Merger Agreement,
the Gas Sale Agreement, the Principal Shareholders Agreement described in Item 6
of this Schedule 13D or as otherwise referred to or described in this Schedule
13D, Dominion has no present plan or proposal which relates to or would result
in any of the matters referred to in Items (a) through (j) of Item 4 of Schedule
13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) - (b) By reason of its execution of the Principal Shareholders
Agreement described in Item 6 of this Schedule 13D and the voting agreement and
irrevocable proxy contained therein, Dominion may be deemed to beneficially own
19,150,000 shares of Company Common Stock, or approximately 44% of the Company
Common Stock outstanding. Dominion expressly disclaims that it has become a
member of a "group" as a result of the execution of the Principal Shareholders
Agreement described in Item 6 of this Schedule 13D.
(c) Other than the execution of the Principal Shareholders Agreement
described in Item 6 of this Schedule 13D, none of Dominion or, to Dominion's
knowledge, any of the persons named on the attached Schedule I has effected any
transactions in Company Common Stock in the past 60 days.
(d) - (e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Reference is made to Item 4 above.
On September 9, 2001, Dominion and subsidiaries of S.A. Louis Dreyfus et
Cie named in the Principal Shareholders Agreement, as hereinafter defined, that
own approximately 44% of the outstanding shares of the Company Common Stock (the
"Principal Shareholders") entered into the Principal Shareholders Agreement (the
"Principal Shareholders Agreement"). The following is a summary of the material
terms of the Principal Shareholders Agreement. This summary is qualified in its
entirety by reference to the Principal Shareholders Agreement which is attached
as an exhibit to this statement and is incorporated in this Schedule 13D by this
reference. The Principal Shareholders has agreed to vote: (i) in favor of the
approval of the terms of the merger, (ii) against any action, proposal,
transaction or agreement that would constitute a breach in any material respect
of any covenant, representation or warranty or any other obligation or agreement
of the Merger Agreement, (iii) except as otherwise agreed to in writing in
advance by Dominion, against the following actions or proposals, (a) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company, (b) a sale, lease or transfer of a
significant part of the assets of the Company or any of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
any of its subsidiaries, (c) any change in the persons who constitute the board
of directors, (d) any change in the present capitalization or any amendment of
the articles of incorporation or bylaws, (e) any other material change in the
corporate structure or business, or (f) any other action or proposal that is
intended or would reasonably be expected, to prevent, impede, or materially
interfere with, delay or postpone the Merger. The Principal Shareholders also
appointed Dominion, or its designee, as proxy to vote their shares at any
meeting of the Company shareholders called with respect to the matters described
above. If the Company board of directors decides that it has a fiduciary
obligation to not recommend to the Company shareholders that they approve the
Merger, the Principal Shareholders are only required to vote approximately two-
thirds of the shares owned by them (approximately 29% of the outstanding Company
Common Stock) in favor of the Merger. The voting agreement terminates if the
Merger Agreement terminates for any reason including if the Company terminates
the Merger Agreement to accept a superior proposal. The Principal Shareholders
Agreement also restricts the ability of the Principal Shareholders to sell the
shares they receive in the Merger. The Principal Shareholders may not sell the
shares of Dominion Common Stock for 90 days after the Merger is complete. For
the next twelve months, the Principal Shareholders can only sell in any month up
to ten percent (10%) of the shares they receive in the Merger, unless Dominion
agrees to allow them to sell more.
Except as provided in the Merger Agreement, the Principal Shareholders
Agreement, and as otherwise referred to or described in this Schedule 13D, to
Dominion's knowledge, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) between Dominion and the Company or any other
person with respect to securities of the Company.
The preceding summary of the Principal Shareholders Agreement does not
purport to be complete. Reference is made to the full text of the Principal
Shareholders Agreement that are filed as exhibits to this statement and are
incorporated in this Schedule 13D by this reference
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated September 9, 2001 by and among
Dominion Resources, Inc., Consolidated Natural Gas Company and
Louis Dreyfus Natural Gas Corp. (Exhibit 2.1, Form 8-K filed
September 10, 2001 by Dominion Resources, Inc., File No. 1-8489,
incorporated by reference).
2.2 Amendment No. 1 to Agreement and Plan of Merger, dated as of
September 17, 2001 by and among Dominion Resources, Inc.,
Consolidated Natural Gas Company and Louis Dreyfus Natural Gas
Corp. (filed herewith).
10.1 Principal Shareholders Agreement dated September 9, 2001 by and
among Dominion Resources, Inc., Louis Dreyfus Commercial Activities
Inc., Louis Dreyfus Natural Gas Holdings Corp. and L.D. Fashions
Holdings Corp. (Exhibit 2.2, Form 8-K filed September 12, 2001 by
Louis Dreyfus Natural Gas Corp., File No. 1-12480, incorporated by
reference).
10.2 Gas Sale Agreement dated September 9, 2001 between Dominion
Exploration & Production Inc. and Louis Dreyfus Natural Gas Corp.
(Exhibit 10.1, Form 8-K filed September 12, 2001 by Louis Dreyfus
Natural Gas Corp., File No. 1-12480, incorporated by reference).
SCHEDULE I
Information Concerning Executive Officers and
Directors of Dominion Resources, Inc.
The current executive officers and directors of Dominion are listed
below. Dominion's principal executive offices are located at 120 Tredegar
Street, Richmond, Virginia 23219. Unless otherwise indicated, the business
address listed for each individual not principally employed by Dominion is also
the address of the corporation or other organization which principally
employs that individual.
CORPORATE OFFICERS
NAME PRESENT POSITION WITH DOMINION CITIZENSHIP
Thos E. Capps Director, Chairman, President & Chief United States
Executive Officer
Thomas N. Chewning Executive Vice President, Chief Financial United States
Officer
Thomas F. Farrell, II Executive Vice President Untied States
James P. O'Hanlon Executive Vice President United States
Duane C. Radtke Executive Vice President United States
Robert E. Rigsby Executive Vice President United States
Edgar M. Roach, Jr. Executive Vice President United States
James L. Trueheart Group Vice President and Chief Administrative United States
Officer
Eva Teig Hardy Senior Vice President - External Affairs United States
& Corporate Communications
G. Scott Hetzer Senior Vice President and Treasurer United States
James L. Sanderlin Senior Vice President - Law United States
Steven A. Rogers Vice President, Controller and Principal United States
Accounting Officer
DIRECTORS
NAME POSITION/PRESENT PRINCIPAL OCCUPATION OR CITIZENSHIP
EMPLOYMENT AND BUSINESS ADDRESS
William S. Barrack, Jr. Director of Standard Commercial Corporation. United States
His address is 781 Weed Street, New Canaan,
CT 06840.
Thos. E. Capps Chairman, President and Chief Executive Officer United States
of Dominion.
George A. Davidson, Jr. Director of PNC Financial Services Group, Inc. United States
and BFGoodrich Company. His address is 625
Liberty Avenue, Pittsburgh, PA 15222-3199.
John W. Harris President of Lincoln Harris, LLC. The address United States
of Lincoln Harris, LLC is 100 North Tryon Street,
Suite 2600, Charlotte, NC 28202.
Benjamin J. Lambert, III Optometrist. The address of his practice is United States
904 North First Street, Richmond, VA 23219.
Richard L. Leatherwood Director of CACI International, Inc. His address United States
is 3805 Greenway, Baltimore, MD 21218.
Margaret A. McKenna President of Lesley University. The address United States
of Lesley University is 29 Everett Street,
Cambridge, MA 02138-2790.
Steven A. Minter Director of The Cleveland Foundation, Goodyear United States
Tire & Rubber Company and Key Corp. His address
is 1422 Euclid Avenue, Suite 1400, Cleveland, OH
44115.
Kenneth A. Randall Director of Oppenheimer Funds, Inc. United States
and Prime Retail, Inc. His address is
6 Whittaker's Mill, Williamsburg, VA 23185.
Frank S. Royal Physician. The address of his practice is United States
East End Medical Building, 1122 North 25th
Street, Richmond, VA 23223.
S. Dallas Simmons Chairman, President and Chief Executive Officer United States
of Dallas Simmons & Associates. The address of
Dallas Simmons & Associates is 314 Burnwick Road,
Richmond, VA 23227.
Robert H. Spilman President of Spilman Properties, Inc. United States
The address of Spilman Properties, Inc. is
3559 Fairystone Park Highway, 2nd Floor,
Bassett, VA 24055.
David A. Wollard Chairman of the Board of Exempla Healthcare. United States
The address of Exempla Healthcare is
600 Grant Street, Suite 600, Denver, CO 80203-3525.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DOMINION RESOURCES, INC.
By: /s/ Patricia A. Wilkerson
--------------------------------
Name: Patricia A. Wilkerson
Title: Vice President and Corporate Secretary
Dated: September 19, 2001
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
2.1 Agreement and Plan of Merger, dated September 9, 2001 by and among
Dominion Resources, Inc., Consolidated Natural Gas Company and
Louis Dreyfus Natural Gas Corp. (Exhibit 2.1, Form 8-K filed
September 10, 2001 by Dominion Resources, Inc., File No. 1-8489,
incorporated by reference).
2.2 Agreement No. 1 to Agreement and Plan of Merger, dated as of
September 17, 2001 by and among Dominion Resources, Inc.,
Consolidated Natural Gas Company and Louis Dreyfus Natural Gas
Corp. (filed herewith).
10.1 Principal Shareholders Agreement dated September 9, 2001 by and
among Dominion Resources, Inc., Louis Dreyfus Commercial Activities
Inc., Louis Dreyfus Natural Gas Holdings Corp. and L.D. Fashions
Holdings Corp. (Exhibit 2.2, Form 8-K filed September 12, 2001 by
Louis Dreyfus Natural Gas Corp., File No. 1-12480, incorporated by
reference).
10.2 Gas Sale Agreement dated September 9, 2001 between Dominion
Exploration & Production Inc. and Louis Dreyfus Natural Gas Corp.
(Exhibit 10.1, Form 8-K filed September 12, 2001 by Louis Dreyfus
Natural Gas Corp., File No. 1-12480, incorporated by reference).
EX-2.2
3
dex22.txt
AMENDMENT NO 1 TO THE AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER dated as of September
17, 2001, is among DOMINION RESOURCES, INC., a Virginia corporation ("Parent"),
CONSOLIDATED NATURAL GAS COMPANY, a Delaware corporation and a direct and
wholly owned subsidiary of Parent ("Sub"), and LOUIS DREYFUS NATURAL GAS CORP.,
an Oklahoma corporation (the "Company").
Parent, Sub and the Company have entered into the Agreement and Plan of
Merger dated as of September 9, 2001 (the "Original Agreement") which provides
for the merger of the Company with and into Sub. Section 1.1 of the Original
Agreement provides that Parent may, at its election, substitute for Sub any
direct wholly owned subsidiary of Parent as a constituent corporation to the
Merger. Parent has determined to form a new corporation ("Newco") as a direct
wholly owned subsidiary of Parent and that Newco rather than Sub shall be the
corporation with and into which the Company shall merge. In order to accomplish
the intended purpose of the transaction that the Company be acquired by Sub,
promptly following the Effective Time of the Merger, Parent will contribute to
Sub all of the outstanding capital stock of the Surviving Corporation.
Accordingly, the parties have entered into this Amendment. The Original
Agreement and this Amendment are referred to collectively as the "Agreement."
Capitalized terms used, but not defined, herein have the meaning given to such
terms in the Original Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Article I of the Agreement is hereby deleted and replaced in its entirety
by the following:
ARTICLE I
THE ACQUISITION
Section 1.1 Formation of Newco; the Merger; Contribution to Sub.
Prior to the Effective Time, Parent shall form a new corporation
("Newco") under the Delaware General Corporation Law ("DGCL"). Newco
shall be a direct wholly owned subsidiary of Parent and shall be
formed solely for the purpose of engaging in the transactions
contemplated hereby, and will engage in no other business activities,
will not have any material liabilities and will conduct its operations
only as contemplated under this Agreement. Parent shall take all
necessary action to cause the Agreement, as amended, to be duly
authorized, executed, delivered and performed by Newco. Subject to the
terms and conditions of this Agreement, at the Effective Time (as
defined in Section 1.3), the Company shall be merged with and into
Newco in accordance with this Agreement, and the separate corporate
existence of the Company shall thereupon cease. Newco
(sometimes hereinafter referred to as the "Surviving Corporation")
shall be the surviving corporation in the Merger and shall be a wholly
owned subsidiary of Parent. The Merger shall have the effects
specified in the DGCL and the Oklahoma General Corporation Act (the
"OGCA"). Promptly following the Effective Time Parent shall contribute
to Sub all of the outstanding capital stock of the Surviving
Corporation and the Surviving Corporation shall become a wholly owned
subsidiary of Sub. At the election of Parent, any direct wholly owned
subsidiary of Parent may be substituted for Newco as a constituent
corporation in the Merger. In such event, the parties hereto agree to
execute an appropriate amendment to this Agreement in order to reflect
such substitution.
Section 1.2 The Closing. Subject to the terms and conditions of
this Agreement, the closing of the Merger (the "Closing") shall take
place (i) at the offices of McGuireWoods LLP, One James Center,
Richmond, Virginia, at 9:00 a.m., local time, on the first business
day immediately following the day on which the last to be fulfilled or
waived of the conditions set forth in Article VII (other than those
conditions that by their nature are to be satisfied at the Closing,
but subject to fulfillment or waiver of those conditions) shall be
fulfilled or waived in accordance herewith or (ii) at such other time,
date or place as Parent and the Company may agree in writing. The date
on which the Closing occurs is hereinafter referred to as the "Closing
Date."
Section 1.3 Effective Time. If all the conditions to the Merger set
forth in Article VII shall have been fulfilled or waived in accordance
herewith and this Agreement shall not have been terminated as provided
in Article VIII, on the Closing Date, certificates of merger (the
"Certificates of Merger") meeting the requirements of Section 251 of
the DGCL and Section 1082 of the OGCA shall be properly executed and
filed with the Secretary of State of the State of Delaware and the
Secretary of State of the State of Oklahoma, respectively. The Merger
shall become effective upon the filing of the Certificates of Merger
with the Secretaries of State of the State of Delaware and Oklahoma in
accordance with the DGCL and the OGCA, or at such later time that the
parties hereto shall have agreed upon and designated in such filing as
the effective time of the Merger (the "Effective Time").
Section 1.4 Certificate of Incorporation. The certificate of
incorporation of Newco in effect immediately prior to the Effective
Time shall be the certificate of incorporation of the Surviving
Corporation, until duly amended in accordance with applicable law.
Section 1.5 Bylaws. The bylaws of Newco in effect immediately prior
to the Effective Time shall be the bylaws of the Surviving
Corporation, until duly amended in accordance with applicable law.
Section 1.6 Board of Directors and Officers. The board of directors
of the Surviving Corporation shall consist of the board of directors
of Newco, as it existed immediately prior to the Effective Time. The
officers of Newco immediately prior to the Effective Time shall be the
officers of the Surviving Corporation.
2. Section 2.1 of the Agreement is hereby deleted and replaced in its
entirety by the following:
Section 2.1 Effect On Capital Stock. At the Effective Time, the
Merger shall have the following effects on the capital stock of the
Company and Newco, without any action on the part of the holder of any
capital stock of the Company or Newco:
(a) Conversion of the Company Shares. Subject to the provisions of
this Section 2.1 and Section 2.3, each share of common stock, $0.01
par value, of the Company (each a "Company Share" and collectively the
"Company Shares") issued and outstanding immediately prior to the
Effective Time (but not including any Dissenting Shares (as defined
below) and any Company Shares that are owned by (i) Parent, Newco or
any other direct or indirect Subsidiary of Parent or (ii) by the
Company (the "Excluded Company Shares")) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be
converted into the right to receive (i) $20.00 in cash (the "Cash
Consideration"), (ii) 0.3226 (the "Exchange Ratio") of a Parent Common
Share (the "Share Consideration" and, together with the Cash
Consideration, the "Merger Consideration") and (iii), in the event the
Effective Time does not occur on or before the record date for the
regular quarterly dividend on Parent Common Shares payable in December
2001 (the "December 2001 Dividend") and/or March 2002 (the "March 2002
Dividend"), as the case may be, and such failure was not the result of
a failure by the Company to perform or observe in any material respect
any of its obligations under this Agreement, an amount in cash equal
to the December 2001 Dividend and/or the March 2002 Dividend, as the
case may be, payable in respect of a Parent Common Share multiplied by
the Exchange Ratio (which sum shall be part of the Cash
Consideration). "Parent Common Share" shall mean the common shares, no
par value, of Parent.
(b) Cancellation of Excluded Company Shares. Each Excluded Company
Share issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of
the holder thereof, no longer be outstanding, shall be canceled and
retired without payment of any consideration therefor and shall cease
to exist.
(c) Newco. At the Effective Time, each share of common stock, no par
value, of Newco issued and outstanding immediately prior to the
Effective Time shall remain outstanding as shares of common stock of the
Surviving Corporation, and the Surviving Corporation shall continue as a
wholly owned subsidiary of Parent.
3. The term "Newco" is substituted for the term "Sub" in each place where
such term appears in Sections 7.2(b) and 7.3(b).
4. Section 8.4 of the Agreement is hereby deleted and replaced in its
entirety by the following:
Section 8.4. Termination by Parent. This Agreement may be
terminated at any time prior to the Effective Time, by action of the
board of directors of Parent after consultation with its legal
advisors, if:
(i) the board of directors of the Company shall have withdrawn,
modified or changed, in a manner adverse to Parent, the board's
approval or recommendation of the Merger or recommended approval of
a Company Acquisition Proposal, or resolved to do any of the
foregoing;
(ii) the Company shall have breached Section 6.1 in any material
respect, and Parent shall have been adversely affected thereby; or
(iii) (A) there has been a breach by the Company of any
representation, warranty covenant or agreement set forth in this
Agreement or if any representation or warranty of the Company shall
have become untrue, in either case such that the conditions set
forth in Section 7.3(a) will not be satisfied at the Closing Date
and (B) such breach is not curable, or, if curable, is not cured
within 30 days after written notice of such breach is given by
Parent to the Company; provided that the right to terminate this
Agreement pursuant to this clause (iii) shall not be available to
Parent if it, at such time, is in material breach of any
representation, warranty, covenant or agreement set forth in this
Agreement such that the conditions set forth in Section 7.2(a) will
not be satisfied at the Closing Date.
5. Section 8.5(a) of the Agreement is hereby deleted and replaced in its
entirety by the following:
Section 8.5. Effect of Termination.
(a) If this Agreement is terminated (i) by the Company or Parent
pursuant to clause (i) or (ii) of Section 8.2 or clause (iii) of
section 8.4 and (A) (1) in the case of a termination pursuant to
clause (i) of Section 8.2 or clause (iii) of Section 8.4, such
termination results from the breach by the Company in a material
respect of any of its material agreements or covenants set forth in
this Agreement and at the time of such breach, any person shall have
made a Company Acquisition Proposal that had become public and then
remained pending or shall have publicly announced and not withdrawn an
intention (whether or not conditional) to make a Company Acquisition
Proposal, or (2) in the case of a termination pursuant to clause (ii)
of Section 8.2, at the time of the Shareholders' Meeting, any person
shall have made a Company Acquisition Proposal that had become public
and then
remained pending or shall have publicly announced and not withdrawn an
intention (whether or not conditional) to make a Company Acquisition
Proposal, (B) Parent was not in material breach of this Agreement, (C)
the condition set forth in Section 7.1(a) was not satisfied at the
time of such termination, (D) the board of directors at no time
withdrew, modified or changed, in any manner adverse to Parent, the
board's approval or recommendation of the Merger or recommended
approval of a Company Acquisition Proposal, or resolved to do any of
the foregoing and (E) within 12 months after such termination the
Company shall consummate or enter into a definitive agreement which is
ultimately consummated with the proponent of such Company Acquisition
Proposal or with another party pursuant to a proposal which is
superior to such proposal, (ii) by the Company pursuant to clause (i)
of Section 8.3 or (iii) by Parent pursuant to clause (i) or (ii) of
Section 8.4; then, the Company shall pay Parent $70 million (the
"Termination Amount") upon termination of this Agreement. All payments
shall be made in cash by wire transfer to an account designated by
Parent on (1) in the case of clause 8.5(a)(ii) the date of termination
of this Agreement, (2) in the case of clause 8.5(a)(iii), the date
which is the third business day following the date of termination of
this Agreement if this Agreement is terminated by Parent, and (3) in
the case of clause 8.5(a)(i), the date on which the Company
Acquisition Proposal referred to in clause (E) thereof is consummated.
The Company acknowledges that the agreements contained in this Section
8.5(a) are an integral part of the transactions contemplated by this
Agreement and constitute liquidated damages and not a penalty, and
that, without these agreements, Parent would not enter into this
Agreement; accordingly, if the Company fails promptly to pay any
amount due pursuant to this Section 8.5(a), and, in order to obtain
such payment, Parent commences a suit which results in a judgment
against the Company for the payment set forth in this Section 8.5(a),
the Company shall pay to Parent its costs and expenses (including
attorneys' fees) in connection with such suit, together with interest
on such amount from the date payment was required to be made until the
date such payment is actually made at the annual prime lending rate of
Citigroup, N.A. in effect from time to time from the date such payment
was required to be made, plus one percent (1%).
6. Except as amended by this Amendment, the Original Agreement remains in
full force and effect and all of the representations and warranties made in the
Original Agreement are true and correct as of the date of the Original
Agreement as if the Amendment had been in effect on such date.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused the
same to be duly delivered on their behalf on the day and year first written
above.
DOMINION RESOURCES, INC.
By: /s/ Thos. E. Capps
____________________________________
Name: Thos. E. Capps
Title: Chairman, President and
Chief Executive Officer
CONSOLIDATED NATURAL GAS COMPANY
By: /s/ Thos. E. Capps
____________________________________
Name: Thos. E. Capps
Title: Chairman, President and
Chief Executive Officer
LOUIS DREYFUS NATURAL GAS CORP.
By: /s/ Mark E. Monroe
____________________________________
Name: Mark E. Monroe
Title: President and Chief Executive
Officer