UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DOMINION ENERGY, INC.
(Exact name of Registrant as specified in its charter)
Virginia | 4911 | 54-1229715 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
120 TREDEGAR STREET RICHMOND, VIRGINIA 23219
(804) 819-2000
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Carlos M. Brown, Esq.
Vice President and General Counsel
Dominion Energy, Inc.
120 Tredegar Street
Richmond, Virginia 23219
Telephone: (804) 819-2690
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Jane Whitt Sellers, Esq. McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, Virginia 23219 (804) 775-1000 |
Jim Stuckey, Esq. Senior Vice President and General Counsel SCANA Corporation 100 SCANA Parkway Cayce, South Carolina 29033 (803) 217-9000 |
William Kucera, Esq. Mayer Brown LLP 71 South Wacker Drive Chicago, Illinois 60606 (312) 782-0600 |
Approximate date of commencement of proposed sale of the securities to the public: , 2018.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, 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(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer | ☒ | Accelerated Filer | ☐ | |||
Non-accelerated Filer | ☐ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
Calculation of Registration Fee
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Title of each class of securities to be registered(1) |
Amount to be registered(2) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price(3)(4) |
Amount of registration fee(4) | ||||
Common Stock |
95,611,418 |
N/A | $5,078,452,603.75 | $632,267.35 | ||||
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(1) | This Registration Statement relates to shares of common stock, no par value, of Dominion Energy, Inc. (Dominion Energy common stock), issuable to holders of common stock, no par value, of SCANA Corporation (SCANA common stock) upon completion of the merger described herein. |
(2) | Represents the estimated maximum number of shares of Dominion Energy common stock to be issued upon completion of the merger described herein. This number is based on 142,916,917 shares of SCANA common stock, the estimated maximum number of shares of SCANA common stock outstanding or reserved for issuance under various equity plans or otherwise, immediately prior to the merger, and the exchange of each such share of SCANA common stock for 0.6690 of a share of Dominion Energy common stock, pursuant to the terms of the Agreement and Plan of Merger, dated as of January 2, 2018, by and among Dominion Energy, Inc., Sedona Corp. and SCANA Corporation, which is attached to the proxy statement/prospectus included in this Registration Statement on Form S-4 as Annex A. |
(3) | Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act and computed pursuant to Rule 457(f) of the Securities Act. The proposed maximum offering price is equal to the product of (a) $35.5343, the average of the high and low prices of SCANAs common stock reported on the New York Stock Exchange on February 13, 2018 and (b) 142,916,917, the estimated maximum number of shares of SCANA common stock that is expected to be exchanged in connection with the merger described herein. |
(4) | Computed in accordance with Section 6(b) of the Securities Act by multiplying 0.00012450 by the proposed maximum aggregate offering price. |
The information in this document is not complete and may be changed. Dominion Energy, Inc. may not sell the securities offered by this document until the registration statement filed with the Securities and Exchange Commission, of which this document is a part, is declared effective. This document shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any jurisdiction where such offer, solicitation or sale is not permitted.
PRELIMINARYSUBJECT TO COMPLETIONDATED , 2018
MERGER PROPOSEDYOUR VOTE IS VERY IMPORTANT
Dear SCANA Shareholders:
The board of directors of SCANA Corporation, which we refer to as SCANA, has adopted an Agreement and Plan of Merger, which we refer to as the merger agreement, dated as of January 2, 2018, by and among Dominion Energy, Inc., which we refer to as Dominion Energy, Sedona Corp., a wholly owned subsidiary of Dominion Energy, which we refer to as Merger Sub, and SCANA.
Pursuant to the merger agreement, Merger Sub will merge with and into SCANA, which we refer to as the merger, with SCANA surviving the merger as a wholly owned subsidiary of Dominion Energy. In the merger, holders of SCANA common stock, whom we refer to as SCANA shareholders, will have the right to receive 0.6690 of a share of Dominion Energy common stock for each share of SCANA common stock held at the time of the merger, which we refer to as the merger consideration, with cash to be paid in lieu of the issuance of any fractional share of Dominion Energy common stock. The value of the merger consideration to be received in exchange for each share of SCANA common stock will fluctuate with the market value of Dominion Energy common stock. The transaction structure contemplates that the receipt of shares of Dominion Energy common stock will be tax-deferred for SCANA shareholders.
SCANA shareholders are encouraged to read this entire proxy statement/prospectus carefully, including:
| the Questions and Answers About the Merger and the Special Meeting section beginning on page iv; |
| the Risk Factors section beginning on page 17; and |
| the The MergerSCANAs Reasons for the Merger; Recommendation of the SCANA Board section beginning on page 47. |
SCANA will hold a special meeting of shareholders to consider the merger, which we refer to as the special meeting. Based on the number of shares of SCANA common stock outstanding on , 2018, the record date for the special meeting, Dominion Energy expects to issue approximately shares of Dominion Energy common stock to the SCANA shareholders. As a result, upon the completion of the merger, former SCANA shareholders will own approximately 13% of the issued and outstanding shares of Dominion Energy common stock. SCANA common stock is listed on the New York Stock Exchange, which we refer to as the NYSE, under the symbol SCG and Dominion Energy common stock is listed on the NYSE under the symbol D.
We cannot complete the merger unless the SCANA shareholders approve the proposal related to the merger and, therefore, your vote is very important. Whether or not you expect to attend the special meeting in person, please vote your shares as promptly as possible by (i) accessing the Internet website specified on your proxy card, (ii) calling the toll-free number specified on your proxy card or (iii) signing all proxy cards that you receive and returning them in the postage-paid envelopes provided, so that your shares of SCANA common stock may be represented and voted at the special meeting. You may change or revoke your proxy at any time before the vote at the special meeting by following the procedures outlined in this proxy statement/prospectus.
We look forward to the successful completion of the merger.
Sincerely,
Jimmy E. Addison
Chief Executive Officer
SCANA Corporation
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued in connection with the merger or determined that this proxy statement/prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
This proxy statement/prospectus is dated , 2018, and is first being mailed to SCANA shareholders on or about , 2018.
SCANA CORPORATION
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS TO BE HELD ON , 2018
NOTICE IS HEREBY GIVEN that SCANA Corporation, a South Carolina corporation, which we refer to as SCANA, will hold a special meeting, which we refer to as the special meeting, of the shareholders of SCANA, whom we refer to as SCANA shareholders, on , 2018, at [a.m./p.m.], Eastern Daylight Time, at .
The SCANA shareholders are being asked to consider and vote on the proposals listed below at the special meeting or any adjournment or postponement of the special meeting:
1. | the proposal to approve the Agreement and Plan of Merger, dated as of January 2, 2018, by and among Dominion Energy, Inc., a Virginia corporation, which we refer to as Dominion Energy, Sedona Corp., a South Carolina corporation and a wholly owned subsidiary of Dominion Energy, which we refer to as Merger Sub, and SCANA, as such agreement may be amended from time to time, which we refer to as the merger agreement, pursuant to which Merger Sub will be merged with and into SCANA, with SCANA surviving the merger as a wholly owned subsidiary of Dominion Energy, and each outstanding share of the common stock of SCANA, no par value, which we refer to as SCANA common stock, will be converted into the right to receive 0.6690 of a share of the common stock of Dominion Energy, no par value, which we refer to as Dominion Energy common stock, with cash paid in lieu of fractional shares, which we refer to as the merger proposal; |
2. | the proposal to approve, on a non-binding advisory basis, the compensation to be paid to SCANAs named executive officers that is based on or otherwise relates to the merger, which we refer to as the merger-related compensation proposal; and |
3. | the proposal to adjourn the special meeting, if necessary or appropriate, in the view of the board of directors of SCANA, which we refer to as the SCANA board, to solicit additional proxies in favor of the merger proposal if there are not sufficient votes at the time of the special meeting to approve the merger proposal, which we refer to as the adjournment proposal. |
Approval of the merger proposal by SCANA shareholders is required to complete the merger. Approval of the merger-related compensation proposal and the adjournment proposal are not required to complete the merger.
The SCANA board has unanimously adopted the merger agreement and approved the transactions contemplated thereby, including the merger, and recommends that you vote FOR the merger proposal, FOR the merger-related compensation proposal and FOR the adjournment proposal. Only SCANA shareholders of record at the close of business on , 2018, are entitled to notice of and to vote at the special meeting.
You may vote your shares of SCANA common stock over the Internet at proxy.georgeson.com, by calling toll-free [ ], by completing and mailing the enclosed proxy card, or in person at the special meeting. We request that you vote in advance whether or not you plan to attend the special meeting.
If you do not vote on the merger proposal, it will have the same effect as a vote by you against the merger proposal.
You may revoke your proxy at any time prior to the vote at the special meeting by voting your shares of SCANA common stock in person at the special meeting, revoting through the website or telephone numbers listed above, or returning a later-dated proxy card.
Sincerely,
Gina Champion
Vice President, Corporate Secretary and
Deputy General Counsel
, 2018
ADDITIONAL INFORMATION
This proxy statement/prospectus incorporates important business and financial information about Dominion Energy and SCANA from other documents that Dominion Energy and SCANA have each filed with the U.S. Securities and Exchange Commission, which we refer to as the SEC. For a listing of documents incorporated by reference into this proxy statement/prospectus, please see the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus. This information is available for you to review at the SECs public reference room located at 100 F Street, N.E., Room 1580, Washington, D.C. 20549, and through the SECs website at www.sec.gov.
This information is available to you without charge upon your request. You can obtain the documents incorporated by reference into this proxy statement/prospectus by requesting them in writing or by telephone from the appropriate company at:
SCANA Corporation | Dominion Energy, Inc. | |
220 Operation Way, Mail Code C103 | 120 Tredegar Street | |
Cayce, South Carolina 29033 | Richmond, Virginia 23219 | |
(803) 217-6916 | Corporate.Secretary@dominionenergy.com | |
Attn: Investor Relations | Attn: Corporate Secretary |
The firm assisting SCANA with the solicitation of proxies:
Georgeson, Inc.
480 Washington Boulevard
Jersey City, NJ 07310
Shareholders Call Toll-Free: [ ]
Banks and Brokers Call Collect: [ ]
Email: [ ]
Investors may also consult SCANAs or Dominion Energys website for more information concerning the merger and other related transactions described in this proxy statement/prospectus. SCANAs website is www.scana.com. Dominion Energys website is www.dominionenergy.com. Each companys filings with the SEC are also available at www.sec.gov. Information contained on SCANAs and Dominion Energys respective websites is not incorporated by reference into, and does not constitute part of, this proxy statement/prospectus. The references to SCANAs and Dominion Energys respective websites are intended to be inactive textual references only.
If you would like to request documents, please do so by , 2018 in order to receive them before the special meeting.
For more information, see the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus.
ABOUT THIS PROXY STATEMENT/PROSPECTUS
This document, which forms part of a registration statement on Form S-4 filed with the SEC by Dominion Energy (File No. 333- ), constitutes a prospectus of Dominion Energy under Section 5 of the Securities Act of 1933, as amended, which we refer to as the Securities Act, with respect to the shares of Dominion Energy common stock to be issued to SCANA shareholders pursuant to the merger agreement. This document also constitutes a proxy statement of SCANA under Section 14(a) of the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act, with respect to the special meeting at which SCANA shareholders will be asked to vote upon and approve the merger proposal, the non-binding merger-related compensation proposal and the adjournment proposal. It also constitutes a notice of meeting with respect to the special meeting.
You should rely only on the information contained in, or incorporated by reference into, this proxy statement/prospectus. No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this proxy statement/prospectus. This proxy statement/prospectus is dated , 2018. You should not assume that the information contained in, or incorporated by reference into, this proxy statement/prospectus is accurate as of any date other than, in the case of this proxy statement/prospectus, the date on the front cover of this proxy statement/prospectus and, in the case of information incorporated by reference, the respective dates of such referenced documents. Neither the mailing of this proxy statement/prospectus to SCANA shareholders nor the issuance by Dominion Energy of shares of Dominion Energy common stock in connection with the merger will create any implication to the contrary.
This proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction in which, or from any person to whom, it is unlawful to make any such offer or solicitation in such jurisdiction. Information contained in this proxy statement/prospectus regarding Dominion Energy has been provided by Dominion Energy and information contained in this proxy statement/prospectus regarding SCANA has been provided by SCANA.
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QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING |
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SELECTED UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION |
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TABLE OF CONTENTS
(continued)
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SCANAs Reasons for the Merger; Recommendation of the SCANA Board |
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Directors and Management of Dominion Energy After the Merger |
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Interests of SCANAs Directors and Executive Officers in the Merger |
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Potential Payments upon a Termination in Connection with a Change in Control |
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Amendments to Organizational Documents; Directors and Officers |
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TABLE OF CONTENTS
(continued)
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NON-BINDING ADVISORY VOTE ON NAMED EXECUTIVE OFFICER MERGER-RELATED COMPENSATION |
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PROPOSAL TO ADJOURN THE SPECIAL MEETING OF SCANA SHAREHOLDERS |
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ANNEXES | ||||
ANNEX AAGREEMENT AND PLAN OF MERGER | A-1 | |||
ANNEX BOPINION OF MORGAN STANLEY & CO. LLC | B-1 | |||
ANNEX COPINION OF RBC CAPITAL MARKETS, LLC | C-1 |
iii
QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING
The following questions and answers are intended to briefly address some questions that you, as a SCANA shareholder, may have regarding the merger, the merger agreement and the special meeting. Dominion Energy and SCANA urge you to read carefully the remainder of this proxy statement/prospectus because these questions and answers may not address all questions or provide all information that might be important to you with respect to the merger, the merger agreement and the matters being considered at the special meeting. Additional important information is also contained in the annexes and the documents incorporated by reference into this proxy statement/prospectus. You may obtain the information incorporated by reference into this proxy statement/prospectus without charge by following the instructions under the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus. For your convenience, these questions and answers have been divided into questions and answers about the merger and questions and answers about the special meeting.
Questions and Answers About the Merger
Q: | What is the merger? |
A: | SCANA, Dominion Energy and Merger Sub have entered into the merger agreement, a copy of which is attached as Annex A to this proxy statement/prospectus and is incorporated by reference herein. The merger agreement contains the terms and conditions of the merger, in which Merger Sub will merge with and into SCANA with SCANA surviving the merger as a wholly owned subsidiary of Dominion Energy, which we refer to as the surviving corporation. |
Q: | Why am I receiving this proxy statement/prospectus and proxy or voting instruction card? |
A: | SCANA is sending these materials to the SCANA shareholders to help them decide how to vote their shares of SCANA common stock with respect to the merger and other matters to be considered at the special meeting. SCANA is holding the special meeting to ask its shareholders to consider and vote upon the merger proposal. The merger cannot be completed unless SCANA shareholders approve the merger proposal. At the special meeting, SCANA shareholders will also be asked to consider and vote upon (i) the merger-related compensation proposal, on a non-binding, advisory basis and (ii) the adjournment proposal, if necessary or appropriate in the view of the SCANA board. |
This proxy statement/prospectus includes important information about the merger, the merger agreement and the special meeting. SCANA shareholders should read this information carefully and in its entirety. The enclosed voting materials allow SCANA shareholders to vote their shares without attending the special meeting in person.
Your vote is very important. We encourage you to vote as soon as possible.
This proxy statement/prospectus constitutes both a proxy statement of SCANA and a prospectus of Dominion Energy. It is a proxy statement of SCANA because the SCANA board is soliciting proxies from the SCANA shareholders. It is a prospectus of Dominion Energy because Dominion Energy will issue shares of Dominion Energy common stock in exchange for outstanding shares of SCANA common stock in the merger.
Q: | What will I receive if the merger is completed? |
A: | If the merger is completed, you will have the right to receive the merger consideration (0.6690 of a share of Dominion Energy common stock for each share of SCANA common stock that you own at the time of the merger). No fractional shares of Dominion Energy common stock will be issued in the merger; instead, if you otherwise would be owed a fraction of a share of Dominion Energy common stock, you will receive the value of that fraction of a share in cash, without interest and rounded to the nearest cent, where value is |
iv
based on a formula that takes into account the volume-weighted average price of Dominion Energy common stock for the ten (10) consecutive trading day period ending on and including the second trading day prior to the time of the closing of the merger. For example, if you own 100 shares of SCANA common stock, in exchange for your shares of Dominion Energy common stock, you will receive 66 shares of Dominion Energy common stock, plus an amount of cash equivalent to the value of 0.90 of a share of Dominion Energy common stock. See the section entitled The Merger AgreementTerms of the Merger beginning on page 84 of this proxy statement/prospectus. |
Q: | Will my shares of Dominion Energy common stock acquired in the merger receive a dividend? |
A: | After the closing of the merger, as a holder of Dominion Energy common stock, you will receive the same dividends on shares of Dominion Energy common stock that all other holders of Dominion Energy common stock will receive with respect to any dividend record date that occurs after the effective time of the merger (as defined below). |
Former SCANA shareholders who hold SCANA share certificates will not be entitled to be paid dividends otherwise payable on the shares of Dominion Energy common stock into which their shares of SCANA common stock are exchangeable until they surrender their SCANA share certificates according to the instructions provided to them. Dividends will be accrued for these shareholders and they will receive the accrued dividends when they surrender their SCANA share certificates. Dominion Energy most recently paid a quarterly dividend on December 20, 2017 in an amount equal to $0.770 per share of Dominion Energy common stock. See the section entitled Comparative Stock Prices and Dividends on page 15 of this proxy statement/prospectus.
All future Dominion Energy dividends will remain subject to approval by the board of directors of Dominion Energy, which we refer to as the Dominion Energy board.
Q: | What will holders of SCANA equity compensation awards receive in the merger? |
A: | At the effective time of the merger, each performance share award in respect of SCANA common stock, which we refer to as a performance share award, and restricted stock unit in respect of SCANA common stock, which we refer to as a restricted stock unit, granted under SCANAs 2015 Long-Term Equity Compensation Plan, 2000 Long-Term Equity Compensation Plan, or Director Compensation and Deferral Plan, as applicable, which we collectively refer to as the SCANA equity award plans, will fully vest (at the target level of performance in the case of the performance share awards) and will be cancelled and converted automatically into the right to receive an amount in cash, without interest, based on a formula that takes into account the volume-weighted average price of Dominion Energy common stock for the ten (10) consecutive trading day period ending on and including the second (2nd) trading day prior to the closing of the merger for each share of SCANA common stock underlying such performance share award or restricted stock unit, as applicable. |
At the effective time of the merger each deferred unit in respect of SCANA common stock, which we refer to as a deferred unit, credited or deemed credited to the SCANA stock ledger under SCANAs Director Compensation and Deferral Plan or Executive Deferred Compensation Plan shall be converted automatically into a number of deferred unit(s) in respect of Dominion Energy common stock under such plans (which will be assumed by Dominion Energy) equal to the product of (x) such deferred unit multiplied by (y) the merger consideration, to be payable pursuant to the terms of the applicable plan.
For additional information regarding the SCANA equity compensation awards, see the section entitled The MergerInterests of SCANAs Directors and Executive Officers in the MergerEquity Compensation beginning on page 73 of this proxy statement/prospectus.
Q: | Do any of SCANAs directors or executive officers have interests in the merger that may differ from or be in addition to my interests as a SCANA shareholder? |
A: | In considering the recommendation of the SCANA board with respect to the merger proposal, you should be aware that SCANAs directors and executive officers may have interests in the merger that are different |
v
from, or in addition to, the interests of the SCANA shareholders generally. The SCANA board was aware of and considered these interests, among other matters, in evaluating and negotiating the merger agreement and the merger, and in recommending that the SCANA shareholders approve the merger agreement. For additional information on the interests of SCANAs directors and executive officers in the merger, see the section entitled The MergerInterests of SCANAs Directors and Executive Officers in the Merger beginning on page 72 of this proxy statement/prospectus and Non-Binding Advisory Vote on Named Executive Officer Merger-Related Compensation beginning on page 110 of this proxy statement/prospectus. |
Q: | Why am I being asked to consider and vote on the merger-related compensation proposal? |
A: | Under SEC rules, we are required to conduct a non-binding advisory vote of shareholders regarding the compensation that may be paid or become payable to our named executive officers in connection with the completion of the merger. |
Q: | What will happen if the SCANA shareholders do not approve the merger-related compensation proposal? |
A: | Approval of the merger-related compensation proposal is not a condition to completion of the merger. The merger-related compensation vote is advisory and will not be binding. Therefore, if the merger proposal is approved by the SCANA shareholders and the merger is completed, the compensation that is the subject of the merger-related compensation proposal, which includes amounts we are contractually obligated to pay, would still be paid regardless of the outcome of the non-binding advisory vote. |
Q: | If I do not favor the approval of the merger agreement, do I have appraisal or dissenters rights? |
A: | No. Because SCANA common stock is listed on the NYSE as of the record date of the special meeting, holders of SCANA common stock are not entitled to exercise appraisal or dissenters rights under Section 33-13-102(B) of the South Carolina Business Corporation Act, which we refer to as the SCBCA, in connection with the merger. SCANA shareholders may vote against the merger proposal if they are not in favor of the approval of the merger agreement. For additional information on appraisal or dissenters rights, see the section entitled The MergerNo Dissenters Rights beginning on page 67 of this proxy statement/prospectus. |
Q: | What are the U.S. federal income tax consequences of the merger to SCANA shareholders? |
A: | The merger is intended to be non-taxable to SCANA shareholders, provided it qualifies as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, which we refer to as the Code. The holders of SCANA common stock are not expected to recognize any gain or loss for U.S. federal income tax purposes on the exchange of shares of SCANA common stock for shares of Dominion Energy common stock in the merger, except with respect to any cash received in lieu of fractional shares of Dominion Energy common stock. |
You should read The MergerU.S. Federal Income Tax Consequences of the Merger beginning on page 65 of this proxy statement/prospectus for a more complete discussion of the U. S. federal income tax consequences of the merger. Tax matters can be complicated and the tax consequences of the merger to you will depend on your particular tax situation. You should consult your tax advisor to determine the tax consequences of the merger to you.
Q: | What will happen to SCANA as a result of the merger? |
A: | If the merger is completed, Merger Sub will be merged with and into SCANA, with SCANA continuing as the surviving corporation and a wholly owned subsidiary of Dominion Energy. |
vi
SCANA will no longer be a public company, and its shares will be delisted from the NYSE, deregistered under the Exchange Act and cease to be publicly traded. SCANA shareholders of record at the effective time of the merger will be entitled to receive the merger consideration.
Q: | What equity stake will SCANA shareholders hold in Dominion Energy immediately following the merger? |
A: | We estimate that upon the closing of the merger, holders of SCANA common stock will hold, in the aggregate, approximately 13% of the issued and outstanding shares of Dominion Energy common stock. |
Q: | When do you expect the merger to be completed? |
A: | We hope to complete the merger in 2018; however, the merger is subject to various regulatory approvals and other conditions set forth in the merger agreement and described elsewhere in this proxy statement/prospectus and it is possible that factors outside the control of SCANA and Dominion Energy could result in the merger being completed at a later time, or not at all. There may be a substantial amount of time between the special meeting and the completion of the merger. We hope to complete the merger as soon as reasonably practicable following the receipt of all required approvals and the satisfaction or waiver of the other conditions. |
Q: | What are the conditions to the completion of the merger? |
A: | In addition to the approval of the merger agreement by SCANA shareholders as described above, closing of the merger is subject to the satisfaction or, to the extent permitted by applicable law, waiver of a number of other conditions, including compliance with applicable federal and state regulatory filing and approval requirements under the terms of the merger agreement, including under the Hart-Scott-Rodino Act, which we refer to as the HSR Act, and from the Nuclear Regulatory Commission, which we refer to as the NRC, and the Federal Energy Regulatory Commission, which we refer to as FERC, as well as from the Public Service Commission of South Carolina, the North Carolina Utilities Commission and the Georgia Public Service Commission, which we refer to as SCPSC, NCUC and GPSC, respectively. Other conditions include that, since the date of the merger agreement, there have been no substantive changes in any applicable law or order with respect to the South Carolina Base Load Review Act of 2007, as amended, which we refer to as the BLRA, or other South Carolina public utility laws that have or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries and that no governmental entity of competent jurisdiction shall have entered any order or enacted any change in law that imposes any condition that would reasonably be expected to result in any material change to the proposed terms, conditions or undertakings of the SCPSC petition (as defined in SummaryConditions to Completion of the Merger) or any significant change to the economic value of the proposed terms of the SCPSC petition, in each case as reasonably determined by Dominion Energy in good faith. Further conditions to closing include (1) that the SCPSC approve the SCPSC petition (other than the request for the SCPSC to make the SCPSC merger determination (as defined below)), unless otherwise consented to by Dominion Energy in its sole discretion, without any material change to the terms, conditions or undertakings of the cost recovery plan (as defined below) or any significant change to the economic value of the cost recovery plan, in each case as reasonably determined by Dominion Energy in good faith, and (2) that the SCPSC approve the merger with no material changes to the terms of the merger or make a finding that the merger is in the public interest or make a finding that there is an absence of harm to South Carolina rate payers as a result of the merger. We refer to the condition in clause (2) as the SCPSC merger determination. |
For a more complete summary of these conditions and additional conditions that must be satisfied or waived prior to the closing of the merger, see the section entitled The Merger AgreementConditions to Completion of the Merger beginning on page 88 of this proxy statement/prospectus.
Q: | What happens if I sell my shares of SCANA common stock before the special meeting? |
A: | The record date for SCANA shareholders entitled to vote at the special meeting is , 2018, which is earlier than the date of the special meeting. If you sell or otherwise transfer your shares of SCANA |
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common stock after the record date but before the special meeting, you will retain your right to vote such shares at the special meeting but will otherwise transfer ownership of your shares of SCANA common stock, unless special arrangements (such as provision of a proxy) are made between you and the person to whom you transfer your shares and each of you notifies us in writing of such special arrangements. |
Q: | What happens if I sell or otherwise transfer my shares of SCANA common stock before the completion of the merger? |
A: | Only holders of shares of SCANA common stock at the time the articles of merger have been filed with the South Carolina Secretary of State (unless the parties agree in writing to a later time for the completion of the merger and specify such time in the articles of merger), which we refer to as the effective time of the merger, will become entitled to receive the merger consideration. If you sell your shares of SCANA common stock prior to the completion of the merger, you will not be entitled to receive the merger consideration upon completion of the merger. |
Q: | What happens if the merger is not completed? |
A: | Under the terms of the merger agreement, if the conditions to the merger are not satisfied or waived by January 2, 2019, which we refer to as the termination date (which will automatically be extended to April 2, 2019 if on the termination date certain required regulatory approvals have not been obtained), then either SCANA or Dominion Energy may terminate the merger agreement, subject to certain restrictions. The merger agreement can also be terminated under other circumstances specified under the merger agreement (see the section entitled The Merger AgreementTermination of the Merger Agreement beginning on page 99 of this proxy statement/prospectus). Under specified circumstances, SCANA may be required to pay to Dominion Energy, or be entitled to receive from Dominion Energy, a fee with respect to the termination of the merger agreement. See the section entitled The Merger AgreementTermination Fees beginning on page 100. |
We cannot complete the merger unless the SCANA shareholders approve the merger proposal. If the merger agreement is not approved by SCANA shareholders or if the merger is not completed for any other reason, SCANA will remain an independent company, the SCANA shareholders will not receive any merger consideration for their shares of SCANA common stock in connection with the merger, and the shares of SCANA common stock will remain outstanding and will continue to be listed and traded on the NYSE.
Questions and Answers Regarding the Special Meeting and Voting
Q: | When and where will the special meeting be held? |
A: | The special meeting will be held at [a.m./p.m.], Eastern Daylight Time on , 2018 at . |
Q: | What matters will be voted on at the special meeting? |
A: | You will be asked to consider and vote on the following proposals: |
| the merger proposal; |
| the merger-related compensation proposal; and |
| the adjournment proposal. |
SCANA will transact no other business at the special meeting or any adjournment or postponement thereof.
Q: | What vote is required for approval of the proposals? |
A: | Approval of the merger proposal requires the affirmative vote of the holders of at least two-thirds of the outstanding shares of SCANA common stock; |
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| The merger-related compensation proposal will be approved if more votes are cast in favor of the proposal than against the proposal (the outcome of the merger-related compensation proposal will not be binding on SCANA or the SCANA board or the compensation committee of the SCANA board); and |
| The adjournment proposal will be approved if more votes are cast in favor of the proposal than against the proposal. |
Q: | How does the SCANA board recommend that I vote on the proposals? |
A: | The SCANA board recommends that the SCANA shareholders vote (i) FOR the merger proposal, (ii) FOR the merger-related compensation proposal and (iii) FOR the adjournment proposal. |
Q: | Who is entitled to vote at the special meeting? |
A: | All holders of SCANA common stock as of the close of business on , 2018, the record date for the special meeting, are entitled to vote at the special meeting, unless a new record date is fixed for any adjournment or postponement of the special meeting. |
Q: | What are the quorum requirements? |
A: | A quorum requires the presence, in person or by proxy, of the holders of a majority of the shares of SCANA common stock outstanding and entitled to vote. A quorum is needed to conduct the votes on the merger proposal and the merger-related compensation proposal. Abstentions and broker non-votes, if any, will be counted as present and entitled to vote for purposes of determining the presence or absence of a quorum. |
Q: | How can I attend the special meeting in person? |
A: | An admission ticket or proof of share ownership as of the record date is required to attend the special meeting in person. If you plan to use the admission ticket, please remember to detach the admission ticket from your proxy card before mailing your proxy card. If you forget to bring the admission ticket, you will be admitted to the special meeting only if you are listed as a shareholder of record as of the record date and you bring proof of identification. If you hold your shares through a broker, bank or other nominee, you must provide proof of ownership by bringing either a copy of the voting instruction card provided by your broker, bank or other nominee or a brokerage statement showing your share ownership as of the record date. If you are a SCANA shareholder of record and your shares are owned jointly and you need an additional admission ticket, you should contact the SCANA Corporate Secretary, SCANA Corporation, 220 Operation Way, Mail Code D133, Cayce, South Carolina 29033, or call 803-217-7568. |
Q: | How do I vote? |
A: | If you are a SCANA shareholder of record as of the record date for the special meeting, whether or not you plan to attend the special meeting, you may vote by submitting a proxy via the Internet, touchtone telephone or mail before the special meeting, or you may vote in person at the special meeting. To ensure your shares are represented at the special meeting, you may submit your proxy by: |
| accessing proxy.georgeson.com (this Internet website is specified on your proxy card); |
| calling (this toll-free number is specified on your proxy card); or |
| signing and returning the enclosed proxy card in the postage-paid envelope provided. |
If you hold shares of SCANA common stock through a broker, bank or other nominee, please follow the voting instructions provided by your broker, bank or other nominee to ensure that your shares are represented at the special meeting.
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Q: | How many votes do I have? |
A: | You are entitled to one (1) vote for each share of SCANA common stock that you owned as of the record date. As of the close of business on , 2018, there were outstanding shares of SCANA common stock. |
Q: | What will happen if I fail to vote or I abstain from voting? |
A: | You are strongly encouraged to vote. It is important that your views be represented no matter how many shares you own. Your failure to vote, or failure to instruct your broker, bank or other nominee to vote, or your abstention from voting, will have the same effect as a vote against the merger proposal, but will not be counted as a vote for or against the merger-related compensation proposal or the adjournment proposal. |
Q: | Who is SCANAs transfer agent? |
A: | Wells Fargo Shareowner Services, a division of Wells Fargo Bank, N.A., which we refer to as Shareowner Services, has served as the transfer agent and registrar for SCANA. On July 12, 2017, Wells Fargo Bank, N.A. announced that it had entered into an agreement to sell Shareowner Services to Equiniti Group plc. In connection with the sale of Shareowner Services, its appointment as transfer agent of SCANA will be transferred to Equiniti Trust Company, which we refer to as EQ, provided that the sale closes. Accordingly, following the closing of the sale, EQ will serve as the transfer agent and registrar for SCANA common stock. |
Q: | What is the difference between holding shares as a shareholder of record and as a beneficial owner? |
A: | If your shares of SCANA common stock are registered directly in your name with SCANAs transfer agent, you are considered the shareholder of record with respect to those shares and you can attend the special meeting and vote in person. You can also vote your shares by proxy without attending the special meeting in any of the ways specified in The Special MeetingVoting by Proxy beginning on page 31 of this proxy statement/prospectus. |
If your shares of SCANA common stock are held by a brokerage firm, trustee, bank, other financial intermediary or nominee, referred to as an intermediary, you are considered the beneficial owner of shares held in street name, and the intermediary is considered the shareholder of record with respect to those shares.
Q: | How do I vote my shares of SCANA common stock if my shares are held in street name by my broker, bank or other nominee? |
A: | If your shares of SCANA common stock are held in street name (that is, through a broker, bank or other nominee), you will receive a voting instruction card or other information from your broker, bank or other nominee seeking instruction from you as to how your shares should be voted, and, to vote your shares, you must provide your broker, bank or other nominee with instructions on how to vote them. Please follow the voting instructions provided by your broker, bank or other nominee. Please note that you may not vote shares held in street name by returning a proxy card directly to SCANA or by voting in person at the special meeting unless you provide a legal proxy, which you must obtain from your broker, bank or other nominee. |
Q: | If my shares of SCANA common stock are held in street name, what will happen if I do not instruct my broker, bank or other nominee on how to vote? |
A: | If you do not instruct your broker, bank or other nominee on how to vote your shares: |
| your broker, bank or other nominee may not vote your shares on the merger proposal, which broker non-votes will have the same effect as a vote against the merger proposal; |
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| your broker, bank or other nominee may not vote your shares on the merger-related compensation proposal, which broker non-votes will not be counted as a vote for or against the merger-related compensation proposal; and |
| your broker, bank or other nominee may not vote your shares on the adjournment proposal, which broker non-votes will not be counted as a vote for or against the adjournment proposal. |
Q: | If I am a shareholder of record, what will happen if I sign and return my proxy card without indicating how to vote? |
A: | If you sign and return your proxy card without indicating how to vote on any particular proposal, the SCANA common stock represented by your proxy will be voted in favor of that proposal. |
Q: | How do I vote shares I hold as a participant in the SCANA Corporation 401(k) Retirement Savings Plan (formerly named the SCANA Corporation Stock Purchase-Savings Plan)? |
A: | If you own shares of SCANA common stock as a participant in the SCANA Corporation 401(k) Retirement Savings Plan, which we refer to as the Plan, you will receive a proxy card that covers only your Plan shares. Proxies executed by Plan participants will serve as instructions to the Plans trustee as to how Plan shares are to be voted. If you do not instruct the Plans trustee how your Plan shares are to be voted, the Plan trustee will instruct the proxy agents to vote your shares in the same proportion as the Plan shares for which the Plans trustee received instructions were voted. As a result of this proportional voting, if voting instructions are given for only a small percentage of Plan participant shares, the wishes of those participants would determine the voting instructions by the Plans trustee. Accordingly, the greater the number of Plan participant shares for which Plan participants complete and execute proxies, the more representative the Plan trustees voting instructions will be. |
The deadline to provide voting directions for shares allocated to your Plan account in the Plan is [a.m./p.m.], Eastern Daylight Time on , 2018, which, for administrative reasons, is earlier than the deadline for voting SCANA common stock not held through the Plan. You will not be able to submit or change voting directions after this deadline. If you own SCANA common stock both through and outside of the Plan, you will be required to vote those shares separately.
Q: | May I change my vote after I have returned a proxy or voting instruction card? |
A: | Yes. You may change your vote (i.e., revoke your proxy card) at any time before your proxy is voted at the special meeting. If you are a shareholder of record (i.e., you hold your shares directly in your name), you may accomplish this by granting a new proxy (by telephone, Internet or mail) bearing a later date or by attending the special meeting and voting in person (each of which automatically revokes the earlier proxy). However, your attendance at the special meeting alone will not revoke any proxy that you have previously given. If you hold your shares in street name, you must follow the instructions on the voting instruction card you received from your broker, bank or other nominee in order to change or revoke your instructions. |
Q: | What do I need to do now? |
A: | Carefully read and consider the information contained in and incorporated by reference into this proxy statement/prospectus, including its annexes. |
In order for your shares to be represented at the special meeting:
| you can vote through the Internet or by telephone by following the instructions included on your proxy card; |
| you can indicate on the enclosed proxy card how you would like to vote and return the card in the accompanying pre-addressed postage paid envelope; or |
| you can attend the special meeting in person. |
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Q: | Do I need to do anything with my SCANA common stock certificates now? |
A: | No. If and after the merger is completed, if you held certificates representing shares of SCANA common stock, which we refer to as SCANA stock certificates, prior to the merger, Dominion Energys exchange agent will send you a letter of transmittal and instructions for exchanging your SCANA stock certificates for the merger consideration. Upon surrender of the SCANA stock certificates for cancellation along with the executed letter of transmittal and other required documents described in the instructions, you will receive the merger consideration. The shares of Dominion Energy common stock you receive in the merger will be issued in book-entry form. |
Q: | Who will solicit and pay the cost of soliciting proxies? |
A: | SCANA has engaged Georgeson, Inc. to assist in the solicitation of proxies for the special meeting, and will pay an estimated fee of $ for their services plus associated costs and expenses. |
Q: | Who can help answer my questions? |
A: | If you have questions about the merger or the other matters to be voted on at the special meeting or desire additional copies of this proxy statement/prospectus or additional proxy cards, you should contact our proxy solicitor or our shareholder services provider: |
Georgeson, Inc.
480 Washington Boulevard,
Jersey City, NJ 07310
Shareholders Call Toll-Free: [ ]
Banks and Brokers Call Collect: [ ]
Email: [ ]
or
[ ]
[ ]
Telephone: [ ]
Email: [ ]
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This summary highlights information contained elsewhere in this proxy statement/prospectus and may not contain all the information that is important to you. We urge you to read carefully the remainder of this proxy statement/prospectus, including the attached annexes, and the other documents to which we have referred you for a more complete understanding of the matters being considered at the special meeting. See also the section entitled Where You Can Find More Information on page 136 of this proxy statement/prospectus. We have included page references to direct you to a more complete description of the topics presented in this summary.
Dominion Energy
120 Tredegar Street
Richmond, Virginia 23219
(804) 819-2000
Headquartered in Richmond, Virginia and incorporated in Virginia in 1983, Dominion Energy is one of the nations largest producers and transporters of energy, with a portfolio of approximately 26,000 megawatts of electric generation, 66,100 miles of natural gas transmission, gathering, storage and distribution pipelines and 64,500 miles of electric transmission and distribution lines. Dominion Energy operates one of the largest natural gas storage systems in the U.S. with 1 trillion cubic feet of capacity, and serves nearly 6 million utility and retail energy customers.
Dominion Energy common stock is listed on the NYSE under the symbol D.
Additional information about Dominion Energy is included in the documents incorporated by reference into this proxy statement/prospectus. See the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus.
SCANA
100 SCANA Parkway
Cayce, South Carolina 29033
(803) 217-9000
SCANA is a South Carolina corporation created in 1984 as a holding company. SCANA, through its wholly owned regulated subsidiaries, is primarily engaged in the generation, transmission, distribution and sale of electricity in the central, southern and southwestern portions of South Carolina and in the purchase, transmission and sale of natural gas in North Carolina and South Carolina. SCANA, through a wholly owned nonregulated subsidiary, also markets natural gas to retail customers in Georgia and to wholesale customers in the southeast United States.
SCANA common stock is traded on the NYSE under the symbol SCG.
Additional information about SCANA and its subsidiaries is included in the documents incorporated by reference into this proxy statement/prospectus. See the section entitled Where You Can Find More Information on page 136 of this proxy statement/prospectus.
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Merger Sub
120 Tredegar Street
Richmond, Virginia 23219
(804) 819-2000
Merger Sub, a wholly owned subsidiary of Dominion Energy, is a South Carolina corporation formed on December 29, 2017 for the purpose of effecting the merger. To date, Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement in connection with the merger.
The Merger and the Merger Agreement
The terms and conditions of the merger are contained in the merger agreement, a copy of which is attached as Annex A to this proxy statement/prospectus. We encourage you to carefully read the merger agreement in its entirety, as it is the principal document that governs the merger.
Pursuant to and in accordance with the terms and conditions of the merger agreement, at the effective time of the merger, Merger Sub will merge with and into SCANA. After the effective time of the merger, SCANA will be the surviving corporation and a wholly owned subsidiary of Dominion Energy. Following the effective time of the merger, SCANA common stock will be delisted from the NYSE, deregistered under the Exchange Act, and cease to be publicly traded.
Merger Consideration (See page 84)
Upon completion of the merger, each issued and outstanding share of SCANA common stock (other than shares owned by Dominion Energy, Merger Sub or any other wholly owned subsidiary of Dominion Energy and shares owned by SCANA or any wholly owned subsidiary of SCANA, which shares we refer to as cancelled shares) will be automatically converted into the right to receive the merger consideration. Cash will be paid in lieu of any fractional shares of Dominion Energy common stock.
Recommendations of the SCANA Board of Directors (See page 47)
On January 2, 2018 the SCANA board adopted the merger agreement by a unanimous vote. For the factors considered by the SCANA board in reaching its decision to approve the merger agreement, see the section entitled The MergerSCANAs Reasons for the Merger; Recommendation of the SCANA Board beginning on page 42.
The SCANA board recommends that the SCANA shareholders vote (i) FOR the merger proposal, (ii) FOR the merger-related compensation proposal and (iii) FOR the adjournment proposal.
Opinions of SCANAs Financial Advisors (See page 47)
Opinion of Morgan Stanley & Co. LLC (See page 47)
The SCANA board selected Morgan Stanley & Co. LLC, which we refer to as Morgan Stanley, to act as its financial advisor based on Morgan Stanleys qualifications, expertise and reputation, its knowledge of and involvement in recent transactions in SCANAs industry and its knowledge and understanding of the business and affairs of SCANA. On January 2, 2018, Morgan Stanley rendered its oral opinion, which was subsequently confirmed in writing, to the SCANA board to the effect that, as of that date, and based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of
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review undertaken by Morgan Stanley as set forth in Morgan Stanleys written opinion, the merger consideration to be received by the holders of shares of SCANA common stock (other than the holders of the cancelled shares) pursuant to the merger agreement was fair from a financial point of view to the holders of shares of SCANA common stock.
The full text of the written opinion of Morgan Stanley delivered to the SCANA board, dated January 2, 2018, is attached as Annex B and incorporated into this proxy statement/prospectus by reference in its entirety. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of the review undertaken by Morgan Stanley in rendering its opinion. SCANA shareholders are urged to, and should, read the opinion carefully and in its entirety. Morgan Stanleys opinion is directed to the SCANA board and addresses only the fairness from a financial point of view of the merger consideration to be received by the holders of shares of SCANA common stock (other than the holders of the cancelled shares) pursuant to the merger agreement as of the date of the opinion. Morgan Stanleys opinion did not address the relative merits of the transactions contemplated by the merger agreement as compared to other business or financial strategies that might be available to SCANA, nor did it address the underlying business decision of SCANA to enter into the merger agreement or proceed with any other transaction contemplated by the merger agreement. In addition, Morgan Stanleys opinion did not in any manner address the prices at which shares of Dominion Energy common stock will trade following completion of the merger or at any time, and Morgan Stanleys opinion was not intended to, and does not, express any opinion or recommendation as to how the SCANA shareholders should vote at the special meeting. The summary of Morgan Stanleys opinion set forth in this proxy statement/prospectus is qualified in its entirety by reference to the full text of Morgan Stanleys opinion.
For a summary of Morgan Stanleys opinion and the methodology that Morgan Stanley used to render its opinion, see the section entitled The MergerOpinions of SCANAs Financial AdvisorsOpinion of Morgan Stanley & Co. LLC beginning on page 47 of this proxy statement/prospectus.
Opinion of RBC Capital Markets, LLC (See page 58)
SCANA has engaged RBC Capital Markets, LLC, which we refer to as RBC Capital Markets, as a financial advisor to SCANA in connection with the merger. As part of this engagement, RBC Capital Markets delivered an opinion, dated January 2, 2018, to the SCANA board as to the fairness, from a financial point of view and as of such date, of the merger consideration to be received by holders of SCANA common stock pursuant to the merger agreement. The full text of RBC Capital Markets written opinion, dated January 2, 2018, is attached as Annex C to this proxy statement/prospectus and sets forth, among other things, the procedures followed, assumptions made, factors considered and qualifications and limitations on the review undertaken by RBC Capital Markets in connection with its opinion, as more fully described in the section entitled The MergerOpinions of SCANAs Financial AdvisorsOpinion of RBC Capital Markets, LLC beginning on page 58 of this proxy statement/prospectus. RBC Capital Markets delivered its opinion to the SCANA board for the benefit, information and assistance of the SCANA board (in its capacity as such) in connection with its evaluation of the merger. RBC Capital Markets opinion addressed only the fairness, from a financial point of view and as of the date of such opinion, of the merger consideration (to the extent expressly specified in such opinion) and did not address any other aspect of the merger. RBC Capital Markets opinion also did not address the underlying business decision of SCANA to engage in the merger or the relative merits of the merger compared to any alternative business strategy or transaction that might be available to SCANA or in which SCANA might engage. RBC Capital Markets does not express any opinion and does not make any recommendation to any shareholder as to how such shareholder should vote or act with respect to the merger or any proposal to be voted upon in connection with the merger or otherwise.
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Interests of SCANAs Directors and Executive Officers in the Merger (See page 72)
In considering the recommendation of the SCANA board with respect to the merger proposal and the other information contained in this proxy statement/prospectus, you should be aware that SCANAs executive officers and directors may have interests in the merger that may be different from, or in addition to, the interests of the SCANA shareholders. These interests include the accelerated vesting of equity awards, arrangements that provide for severance benefits if the employment of a SCANA executive officer is terminated under specified circumstances following the completion of the merger and rights to indemnification and directors and officers liability insurance that will survive the completion of the merger. For a detailed discussion of the interests that SCANAs directors and executive officers may have in the merger, please see the section entitled The MergerInterests of SCANAs Directors and Executive Officers in the Merger beginning on page 72 of this proxy statement/prospectus.
Expected Timing of the Merger (See page 68)
We are targeting to complete the merger in 2018, subject to the receipt of required shareholder and regulatory approvals and the satisfaction or waiver of the other conditions to the merger discussed below.
Conditions to Completion of the Merger (See page 88)
As more fully explained below, the obligation of SCANA, Dominion Energy and Merger Sub to effect the merger is subject to the satisfaction or waiver of the following mutual conditions:
| the receipt of the affirmative vote of holders of at least two-thirds of the outstanding shares of SCANA common stock entitled to vote thereon at a duly held special meeting (or any adjournment or postponement of the special meeting) with respect to the merger proposal, which we refer to as the SCANA requisite vote; |
| the absence of any law or order issued by any governmental entity (as defined below) prohibiting the completion of the merger; |
| the expiration or termination of the waiting period applicable to the completion of the merger under the HSR Act; |
| authorization of the merger from the FERC; |
| authorization of the merger from the NRC; |
| authorization of the merger from the GPSC; |
| authorization of the merger from the NCUC; |
| the issuance by the SCPSC of an order approving the SCPSC petition (other than with respect to the SCPSC merger determination, which is discussed in the conditions of Dominion Energy and Merger Sub in the immediately following paragraph), unless otherwise consented to by Dominion Energy in its sole discretion, without any material changes to the proposed terms, conditions or undertakings set forth in the cost recovery plan or any significant changes to the economic value of the proposed terms of the cost recovery plan (we refer to (i) the South Carolina Public Service Authority as Santee Cooper, (ii) the New Nuclear Development Project under which SCANA and Santee Cooper undertook to construct two (2) Westinghouse AP1000 Advanced Passive Safety nuclear units in Jenkinsville, South Carolina as the NND project, (iii) the cost recovery plan set forth in the SCPSC petition as the cost recovery plan and (iv) the joint petition filed by SCANAs wholly owned utility subsidiary South Carolina Electric & Gas Company, which we refer to as SCE&G, and Dominion Energy with the SCPSC requesting that the SCPSC approve the merger and approve the terms for cost recovery and other regulatory matters with respect to the NND project set forth therein as the SCPSC petition); |
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| the approval for listing of the shares of Dominion Energy common stock to be issued in the merger on the NYSE; and |
| the effectiveness under the Securities Act of the registration statement on Form S-4 of which this proxy statement/prospectus is a part. |
The obligation of Dominion Energy and Merger Sub to effect the merger is subject to the satisfaction or waiver of the following additional conditions:
| the representations and warranties of SCANA relating to SCANAs capitalization being true and correct in all respects, except for de minimis inaccuracies; |
| the representations and warranties of SCANA relating to (i) SCANAs authority to execute and deliver the merger agreement and perform its obligations under the merger agreement and (ii) brokers and advisors fees and commissions owed by SCANA to brokers or other financial advisors in connection with the merger, each being true and correct in all material respects; |
| the representations and warranties of SCANA relating to (i) the absence of any changes since January 1, 2017 that have or would be reasonably expected to have, individually or in the aggregate, a material adverse effect on SCANA and its subsidiaries, taken as a whole and (ii) the SCANA requisite vote being the only vote of the SCANA shareholders required to approve the merger agreement and the merger, each being true and correct in all respects; |
| each of the representations and warranties of SCANA other than those referred to in the three immediately preceding bullets being true and correct in all respects, except where the failure of such representations and warranties to be true and correct has not had or would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on SCANA and its subsidiaries, taken as a whole; |
| performance in all material respects by SCANA of all obligations required to be performed by it under the merger agreement on or prior to the closing date of the merger; |
| Dominion Energy having received a certificate of the chief executive officer or the chief financial officer of SCANA, certifying that the conditions set forth in the five (5) immediately preceding bullets have been satisfied; |
| the absence of any regulatory approval or other approval or consent, in each case in connection with the merger, or order of a governmental entity related to any of the foregoing imposing a burdensome condition; |
| the absence of any changes since the date of the merger agreement that have or would be reasonably expected to have, individually or in the aggregate, a material adverse effect on SCANA and its subsidiaries, taken as a whole; |
| the absence of any order enacted by a governmental entity of competent jurisdiction or any change in law which, in each case, imposes any condition that would reasonably be expected to result in (i) a material change to the proposed terms, conditions, or undertakings set forth in the SCPSC petition, or (ii) a significant change to the economic value of the proposed terms set forth in the SCPSC petition, in each case as reasonably determined by Dominion Energy in good faith; |
| the SCPSC shall have made the SCPSC merger determination; and |
| the absence of any (i) substantive change in applicable law or any order with respect to the BLRA as in effect as of the date of the merger agreement or (ii) substantive change in any applicable law or any order enacted by a governmental entity with respect to any other laws of the State of South Carolina governing public utilities as in effect as of the date of the merger agreement, in each case, which has or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries. |
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The obligation of SCANA to effect the merger is subject to the satisfaction or waiver of the following additional conditions:
| the representations and warranties of Dominion Energy and Merger Sub relating to Dominion Energys and Merger Subs capitalization being true and correct in all respects, except for de minimis inaccuracies; |
| the representations and warranties of Dominion Energy and Merger Sub relating to (i) Dominion Energys and Merger Subs authority to execute and deliver the merger agreement and perform its obligations under the merger agreement and (ii) brokers and advisors fees and commissions owed by Dominion Energy and Merger Sub to brokers or other financial advisors in connection with the merger, each being true and correct in all material respects; |
| the representations and warranties of Dominion Energy and Merger Sub relating to (i) the absence of any change since January 1, 2017 that has or would be reasonably expected to have, individually or in the aggregate, a material adverse effect on Dominion Energy and its subsidiaries, taken as a whole and (ii) the approval of the merger agreement by the sole shareholder of Merger Sub being the only vote or consent of any class of capital stock of Dominion Energy or any of its affiliates necessary for Dominion Energy and Merger Sub to approve the merger agreement and complete the merger and the other transactions contemplated by the merger agreement, each being true and correct in all respects; |
| each of the representations and warranties of Dominion Energy and Merger Sub other than those referred to in the three (3) immediately preceding bullets above being true and correct in all respects, except where the failure of such representations and warranties to be true and correct has not had or would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on Dominion Energy and its subsidiaries, taken as a whole; |
| performance in all material respects by Dominion Energy and Merger Sub of all obligations required to be performed by them under the merger agreement on or prior to the closing date of the merger; and |
| SCANA having received a certificate of the chief executive officer or the chief financial officer of Dominion Energy certifying that the conditions set forth in the five (5) immediately preceding bullets have been satisfied. |
We cannot be certain when, or if, the conditions to the merger will be satisfied or waived, or that the merger will be completed.
Termination of the Merger Agreement (See page 99)
As more fully explained below, the merger agreement may be terminated and the merger may be abandoned at any time prior to the effective time of the merger:
| by mutual written consent of Dominion Energy and SCANA; |
| by either Dominion Energy or SCANA: |
| if the merger shall not have been completed on or before January 2, 2019, except that such date will be automatically extended to April 2, 2019 if, as of January 2, 2019, the only conditions to closing not yet satisfied or waived are the ones relating to governmental orders, regulatory approvals or the SCPSCs approval of the cost recovery plan; |
| if the SCANA requisite vote is not obtained at the special meeting (or any adjournment or postponement thereof); or |
| if a governmental entity shall have entered a final, nonappealable order that prohibits completion of the merger; |
6
| by SCANA: |
| if, prior to obtaining the SCANA requisite vote, the SCANA board has effected a SCANA board adverse recommendation change with respect to a superior proposal in accordance with the procedures set forth in the merger agreement and shall have approved, and concurrently with the termination of the merger agreement, SCANA shall have entered into, an alternative acquisition agreement with respect to a superior proposal and paid to Dominion Energy the applicable termination fee; or |
| if Dominion Energy or Merger Sub have breached any of their respective representations or warranties or failed to perform any of their respective covenants under the merger agreement where (i) such breach would give rise to a failure of a condition to SCANAs obligation to complete the merger relating to (a) the accuracy of Dominion Energys and Merger Subs representations and warranties or (b) the performance by Dominion Energy and Merger Sub of all obligations required to be performed by them under the merger agreement and (ii) the breach cannot be cured by Dominion Energy or Merger Sub prior to the termination date, or is not cured by Dominion Energy or Merger Sub prior to the earlier of (a) the thirtieth (30th) day after SCANA provides Dominion Energy written notice of such breach and (b) the third (3rd) business day immediately preceding the termination date; |
| by Dominion Energy: |
| if the SCANA board (or a committee thereof) has effected a SCANA board adverse recommendation change; or |
| if SCANA has breached any of its representations or warranties or failed to perform any of its covenants under the merger agreement where (i) such breach would give rise to a failure of a condition to Dominion Energys and Merger Subs obligation to complete the merger relating to (a) the accuracy of SCANAs representations and warranties or (b) the performance by SCANA of all obligations required to be performed by it under the merger agreement and (ii) the breach cannot be cured by SCANA prior to the termination date, or is not cured by SCANA prior to the earlier of (a) the thirtieth (30th) day after Dominion Energy provides SCANA written notice of such breach and (b) the third (3rd) business day immediately preceding the termination date. |
Termination Fees (See page 100)
The merger agreement provides that, upon termination of the merger agreement under certain circumstances, each party may be obligated to pay the other party a termination fee, discussed under the section entitled The Merger AgreementTermination Fees beginning on page 100 of this proxy statement/prospectus.
Directors and Management of Dominion Energy After the Merger (See page 65)
Upon completion of the merger, the board of directors and executive officers of Dominion Energy are expected to remain unchanged. Pursuant to the terms of the merger agreement, as soon as practical after completion of the merger, the Dominion Energy board intends to appoint a mutually agreeable current member of the SCANA board or SCANAs executive management to serve on the Dominion Energy board. For information on Dominion Energys current directors and executive officers, please see Dominion Energys proxy statement dated March 20, 2017. See the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus.
Regulatory Approvals Required for the Merger (See page 67)
Under the terms of the merger agreement, to complete the merger, Dominion Energy and SCANA must obtain approvals or consents from, or make filings with, public utility, antitrust and other regulatory authorities.
7
The U. S. federal and state approvals, consents and filings required under the terms of the merger agreement to complete the merger include the following:
| the expiration or early termination of certain waiting periods under the HSR Act and the related rules and regulations, which provide that certain acquisition transactions may not be completed until required information has been furnished to the Antitrust Division of the Department of Justice, which we refer to as the DOJ, and the Federal Trade Commission, which we refer to as the FTC; |
| approval of the FERC under the Federal Power Act, which we refer to as the FPA; |
| consent of the NRC under Section 184 of the Atomic Energy Act and the NRCs implementing regulations in 10 C.F.R. 50.80; |
| approval of the GPSC under § 46-4-25 of the Official Code of Georgia, which we refer to as the O.C.G.A.; |
| authorization of the NCUC under Section 62-111(a) of the North Carolina General Statutes, which we refer to as the NCGS; |
| approval by the SCPSC of the SCPSC petition (other than the request for the SCPSC to make the SCPSC merger determination), unless otherwise consented to by Dominion Energy in its sole discretion, without any material changes to the terms, conditions or undertakings of the cost recovery plan or any significant change to the economic value of the cost recovery plan, in each case as reasonably determined by Dominion Energy in good faith; and |
| the SCPSC merger determination. |
While not a condition to the closing of the merger, the transfer of indirect control over certain licenses for private internal communications held by SCANA and certain SCANA subsidiaries will require the approval of the Federal Communications Commission, which we refer to as the FCC, and the indirect transfer of control of certain state issued radioactive material licenses will require state-level consents.
Dominion Energy and SCANA have made or intend to make various filings and submissions for the above-mentioned authorizations and approvals. Dominion Energy and SCANA filed the required HSR Act notification and report forms with the DOJ and FTC on January 19, 2018, requested early termination of the HSR Act waiting period and were granted such early termination on February 1, 2018. We cannot assure that we will obtain such consents or approvals on terms and subject to conditions that will satisfy the requirements of the merger agreement. Please see the section entitled The MergerRegulatory Approvals Required for the Merger beginning on page 67 of this proxy statement/prospectus for additional information about these matters.
U.S. Federal Income Tax Consequences of the Merger (See page 65)
The merger is intended to be non-taxable to shareholders, provided it qualifies as a reorganization within the meaning of Section 368(a) of the Code. The holders of SCANA common stock are not expected to recognize any gain or loss for U.S. federal income tax purposes on the exchange of shares of SCANA common stock for shares of Dominion Energy common stock in the merger, except with respect to any cash received in lieu of fractional shares of Dominion Energy common stock.
You should read The MergerU.S. Federal Income Tax Consequences of the Merger beginning on page 65 of this proxy statement/prospectus for a more complete discussion of the U. S. federal income tax consequences of the merger. Tax matters can be complicated and the tax consequences of the merger to you will depend on your particular tax situation. You should consult your tax advisor to determine the tax consequences of the merger to you.
8
Accounting Treatment (See page 67)
Dominion Energy prepares its financial statements in accordance with generally accepted accounting principles in the United States, which we refer to as GAAP. The merger will be accounted for using the acquisition method of accounting. Dominion Energy will be treated as the acquiror for accounting purposes.
No Dissenters Rights (See page 67)
No SCANA shareholder will be entitled to exercise any dissenters rights, appraisal rights or other similar rights in connection with the merger and the other transactions contemplated by the merger agreement.
The Special Meeting (See page 29)
The special meeting will be held at [a.m./p.m.] Eastern Daylight Time on , 2018 at . At the special meeting, SCANA shareholders will be asked to consider and vote on:
| the merger proposal; |
| the merger-related compensation proposal; and |
| the adjournment proposal, if necessary or appropriate in the view of the SCANA board. |
You may vote at the special meeting if you owned common stock of SCANA at the close of business on the record date, , 2018. As of the record date there were shares of SCANA common stock outstanding and entitled to vote.
You may cast one (1) vote for each share of SCANA common stock that you owned on the record date.
Required Vote (See page 30)
Approval of the merger proposal requires the affirmative vote of the holders of at least two-thirds of the outstanding shares of SCANA common stock. Your failure to vote, or failure to instruct your broker, bank or other nominee to vote, or your abstention from voting, will have the same effect as a vote against the merger proposal.
The merger-related compensation proposal will be approved if more votes are cast in favor of the proposal than against the proposal. Because the votes for the merger-related compensation proposal are non-binding, if the merger agreement is approved by the SCANA shareholders and the merger is completed, the compensation that is the subject of the merger-related compensation proposal, which includes amounts SCANA is contractually obligated to pay, would still be paid regardless of the outcome of the non-binding advisory vote. Abstentions and broker non-votes will not be counted as a vote for or against the merger-related compensation proposal.
The adjournment proposal will be approved if more votes are cast in favor of the proposal than against the proposal. Abstentions and broker non-votes will not be counted as a vote for or against the adjournment proposal.
If you sign and return your proxy card without indicating how to vote on any particular proposal, SCANA common stock represented by your proxy will be voted in favor of that proposal.
As of the record date for the special meeting, the directors and executive officers of SCANA as a group owned and were entitled to vote shares of the common stock of SCANA, or approximately % of the outstanding shares of SCANA common stock on that date. SCANA currently expects that its directors and executive officers will vote their shares in favor of approval of the merger agreement, but none of SCANAs directors or executive officers have entered into any agreement obligating them to do so.
9
Before voting at the special meeting, you should carefully consider all of the information contained in or incorporated by reference into this proxy statement/prospectus, as well as the specific factors under the section entitled Risk Factors beginning on page 17 of this proxy statement/prospectus.
10
SELECTED HISTORICAL FINANCIAL DATA OF DOMINION ENERGY
The selected historical consolidated financial data of Dominion Energy for each of the years ended 2016, 2015 and 2014 and at December 31, 2016 and 2015 have been derived from Dominion Energys audited consolidated financial statements and related notes contained in its Annual Report on Form 10-K for the year ended December 31, 2016, which are incorporated by reference into this proxy statement/prospectus, and will accompany this proxy statement/prospectus mailed to SCANA shareholders in accordance with South Carolina law. The selected historical consolidated financial data for the years ended 2013 and 2012 and at December 31, 2014, 2013 and 2012 have been derived from Dominion Energys audited consolidated financial statements, which have not been incorporated by reference into this proxy statement/prospectus. The selected historical consolidated financial data at September 30, 2017 and for the nine months ended September 30, 2017 and 2016 have been derived from Dominion Energys unaudited consolidated financial statements and related notes contained in its Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2017, which are incorporated by reference into this proxy statement/prospectus. The selected historical consolidated financial data at September 30, 2016 has been derived from Dominion Energys unaudited consolidated financial statements, which have not been incorporated by reference into this proxy statement/prospectus. The information set forth below is only a summary and is not necessarily indicative of the results of future operations of Dominion Energy or the combined company, and you should read the following information together with Dominion Energys audited consolidated financial statements, the related notes and the section titled Managements Discussion and Analysis of Financial Condition and Results of Operations contained in Dominion Energys Annual Report on Form 10-K for the year ended December 31, 2016, and Dominion Energys unaudited consolidated financial statements, the related notes and the section titled Managements Discussion and Analysis of Financial Condition and Results of Operations contained in Dominion Energys Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2017, which are incorporated by reference. For more information, see the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/ prospectus.
Nine Months Ended September 30, |
Year Ended December 31, |
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2017 | 2016 | 2016 | 2015 | 2014 | 2013 | 2012 | ||||||||||||||||||||||
(millions, except per share amounts) | ||||||||||||||||||||||||||||
Dominion Energy |
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Operating revenue |
$ | 9,376 | $ | 8,651 | $ | 11,737 | $ | 11,683 | $ | 12,436 | $ | 13,120 | $ | 12,835 | ||||||||||||||
Income from continuing operations, net of tax |
1,687 | 1,666 | 2,123 | 1,899 | 1,310 | 1,789 | 1,427 | |||||||||||||||||||||
Loss from discontinued operations, net of tax |
| | | | | (92 | ) | (1,125 | ) | |||||||||||||||||||
Net income attributable to Dominion Energy |
1,687 | 1,666 | 2,123 | 1,899 | 1,310 | 1,697 | 302 | |||||||||||||||||||||
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Income from continuing operations before loss from discontinued operations per common share-basic |
2.66 | 2.72 | 3.44 | 3.21 | 2.25 | 3.09 | 2.49 | |||||||||||||||||||||
Net income attributable to Dominion Energy per common share-basic |
2.66 | 2.72 | 3.44 | 3.21 | 2.25 | 2.93 | 0.53 | |||||||||||||||||||||
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Income from continuing operations before loss from discontinued operations per common share-diluted |
2.66 | 2.71 | 3.44 | 3.20 | 2.24 | 3.09 | 2.49 | |||||||||||||||||||||
Net income attributable to Dominion Energy per common share-diluted |
2.66 | 2.71 | 3.44 | 3.20 | 2.24 | 2.93 | 0.53 | |||||||||||||||||||||
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Dividends declared per common share |
2.265 | 2.10 | 2.80 | 2.59 | 2.40 | 2.25 | 2.11 | |||||||||||||||||||||
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Total assets |
75,391 | 69,599 | 71,610 | 58,648 | 54,186 | 49,963 | 46,711 | |||||||||||||||||||||
Long-term debt |
30,886 | 28,707 | 30,231 | 23,468 | 21,665 | 19,199 | 16,736 | |||||||||||||||||||||
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11
SELECTED HISTORICAL FINANCIAL DATA OF SCANA
The selected historical consolidated financial data of SCANA for the years ended 2016, 2015 and 2014 and at December 31, 2016 and 2015 have been derived from SCANAs audited consolidated financial statements and related notes contained in its Annual Report on Form 10-K for the year ended December 31, 2016, which are incorporated by reference into this proxy statement/prospectus, and will accompany this proxy statement/prospectus mailed to SCANA shareholders in accordance with South Carolina law. The selected historical consolidated financial data for the years ended 2013 and 2012 and at December 31, 2014, 2013 and 2012 have been derived from SCANAs audited consolidated financial statements, which have not been incorporated by reference into this proxy statement/prospectus. The selected historical consolidated financial data at September 30, 2017 and for the nine months ended September 30, 2017 and 2016 have been derived from SCANAs unaudited consolidated financial statements and related notes contained in its Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2017, which are incorporated by reference into this proxy statement/prospectus. The selected historical consolidated financial data at September 30, 2016 has been derived from SCANAs unaudited consolidated financial statements, which have not been incorporated by reference into this proxy statement/prospectus. The information set forth below is only a summary and is not necessarily indicative of the results of future operations of SCANA or the combined company, and you should read the following information together with SCANAs audited consolidated financial statements, the related notes and the section titled Managements Discussion and Analysis of Financial Condition and Results of Operations contained in SCANAs Annual Report on Form 10-K for the year ended December 31, 2016, and SCANAs unaudited consolidated financial statements, the related notes and the section titled Managements Discussion and Analysis of Financial Condition and Results of Operations contained in SCANAs Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2017, which are incorporated by reference into this proxy statement/prospectus. See the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus.
Nine Months Ended September 30, |
Year Ended December 31, |
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2017 | 2016 | 2016 | 2015 | 2014 | 2013 | 2012 | ||||||||||||||||||||||
(millions, except per share amounts) | ||||||||||||||||||||||||||||
SCANA |
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Operating revenues |
$ | 3,249 | $ | 3,171 | $ | 4,227 | $ | 4,380 | $ | 4,951 | $ | 4,495 | $ | 4,176 | ||||||||||||||
Operating income |
685 | 900 | 1,153 | 1,308 | 1,007 | 910 | 859 | |||||||||||||||||||||
Net income |
326 | 471 | 595 | 746 | 538 | 471 | 420 | |||||||||||||||||||||
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Earnings per share of common stockbasic |
2.28 | 3.29 | 4.16 | 5.22 | 3.79 | 3.40 | 3.20 | |||||||||||||||||||||
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Earnings per share of common stockdiluted |
2.28 | 3.29 | 4.16 | 5.22 | 3.79 | 3.39 | 3.15 | |||||||||||||||||||||
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Dividends declared per common share |
1.8375 | 1.7250 | 2.30 | 2.18 | 2.10 | 2.03 | 1.98 | |||||||||||||||||||||
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Total assets |
20,019 | 18,446 | 18,707 | 17,146 | 16,818 | 15,127 | 14,568 | |||||||||||||||||||||
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Short-term and long-term debt |
7,654 | 7,367 | 7,431 | 6,529 | 6,581 | 5,788 | 5,707 | |||||||||||||||||||||
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12
SELECTED UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
The following selected unaudited pro forma consolidated financial information is derived from the unaudited pro forma consolidated statements of income data of Dominion Energy for the nine months ended September 30, 2017 and the year ended December 31, 2016, which have been prepared to give effect to the merger as if the merger was completed on January 1, 2016, and the unaudited pro forma condensed consolidated balance sheet of Dominion Energy at September 30, 2017, which has been prepared to give effect to the merger as if the merger was completed on September 30, 2017.
The following selected unaudited pro forma consolidated financial information is for illustrative and informational purposes only and is not necessarily indicative of the results that might have occurred had the merger taken place on January 1, 2016, for statements of income purposes, and September 30, 2017 for balance sheet purposes, and is not intended to be a projection of future results. Future results may vary significantly from the results reflected because of various factors, including those discussed in the section entitled Risk Factors beginning on page 17 of this proxy statement/prospectus. The following selected unaudited pro forma consolidated financial information should be read in conjunction with the section titled Unaudited Pro Forma Consolidated Financial Statements and related notes included in this proxy statement/prospectus beginning on page 112 of this proxy statement/prospectus.
Nine Months Ended September 30, 2017 |
Year Ended December 31, 2016 |
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(millions, except per share amounts) | ||||||||
Pro Forma Consolidated Dominion Energy |
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Operating revenue |
$ | 12,590 | $ | 15,970 | ||||
Income from continuing operations, net of tax |
2,014 | 2,741 | ||||||
Net income attributable to Dominion Energy |
2,014 | 2,741 | ||||||
Income from continuing operations per common share-basic |
2.76 | 3.85 | ||||||
Net income attributable to Dominion Energy per common share-basic |
2.76 | 3.85 | ||||||
Income from continuing operations per common share-diluted |
2.76 | 3.85 | ||||||
Net income attributable to Dominion Energy per common share-diluted |
2.76 | 3.85 | ||||||
Total assets |
95,657 | |||||||
Long-term debt |
37,393 |
13
EQUIVALENT AND COMPARATIVE PER SHARE INFORMATION
The following table summarizes unaudited per share data for (i) Dominion Energy and SCANA on a historical basis, (ii) Dominion Energy on a pro forma combined basis giving effect to the merger and (iii) SCANA on a pro forma equivalent basis calculated by multiplying the Dominion Energy pro forma combined data by the exchange ratio of 0.6690. It has been assumed for purposes of the pro forma combined financial information provided below that the merger was completed on January 1, 2016, for earnings per share purposes, and on September 30, 2017, for shareholders equity per share purposes. The following information should be read in conjunction with the section entitled Unaudited Pro Forma Consolidated Financial Statements and related notes included in this document beginning on page 112 of this proxy statement/prospectus.
Dominion Energy | SCANA | |||||||||||||||
Historical | Pro Forma Combined |
Historical | Pro Forma Equivalent(a) |
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Nine Months Ended September 30, 2017 |
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Basic earnings per share of common stock |
$ | 2.66 | $ | 2.76 | $ | 2.28 | $ | 1.85 | ||||||||
Diluted earnings per share of common stock |
2.66 | 2.76 | 2.28 | 1.85 | ||||||||||||
Cash dividends declared per share |
2.265 | 2.265 | 1.8375 | 1.515 | ||||||||||||
Book value per share(b) |
25.28 | 29.98 | 40.47 | 20.06 | ||||||||||||
Year Ended December 31, 2016 |
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Basic earnings per share of common stock |
3.44 | 3.85 | 4.16 | 2.58 | ||||||||||||
Diluted earnings per share of common stock |
3.44 | 3.85 | 4.16 | 2.58 | ||||||||||||
Cash dividends declared per share |
2.80 | 2.80 | 2.30 | 1.87 |
(a) | The unaudited SCANA pro forma equivalents are calculated by multiplying the unaudited Dominion Energy pro forma combined per share amounts by the exchange ratio of 0.6690. |
(b) | Historical book value per share for Dominion Energy and SCANA represents the total shareholders equity at September 30, 2017 divided by the number of shares of Dominion Energy or SCANA shares outstanding. The unaudited Dominion Energy pro forma combined book value per share represents the total pro forma shareholders equity at September 30, 2017 divided by the pro forma combined number of shares of Dominion Energy common stock that would have been outstanding at September 30, 2017 had the merger been completed at that date. |
14
COMPARATIVE STOCK PRICES AND DIVIDENDS
Dominion Energy common stock is traded on the NYSE under the symbol D and SCANA common stock is traded on the NYSE under the symbol SCG. The following table presents the closing prices for shares of Dominion Energy common stock and SCANA common stock on January 2, 2018, the last trading day before the public announcement of the execution of the merger agreement, and February 13, 2018 the latest practicable trading day before the date of this proxy statement/prospectus. The table also shows the equivalent per share value of the merger consideration for each share of SCANA common stock, which per share values are calculated as the product of (i) the Dominion Energy per share values and (ii) 0.6690, the exchange ratio.
Dominion Energy Common Stock |
SCANA Common Stock |
Equivalent Per Share Information |
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Date |
Closing Price | Closing Price | ||||||||||
January 2, 2018 |
$ | 80.28 | $ | 38.87 | $ | 53.71 | ||||||
February 13, 2018 |
$ | 75.07 | $ | 36.02 | $ | 50.22 |
The above table shows only historical comparisons. These comparisons may not provide meaningful information to SCANA shareholders in determining whether to approve the merger agreement. SCANA shareholders are urged to obtain current market quotations for Dominion Energy common stock and SCANA common stock and to review carefully the other information contained in this proxy statement/prospectus or incorporated by reference into this proxy statement/prospectus in considering whether to approve the merger agreement. See the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus for instructions on how to obtain the information that has been incorporated by reference. Historical performance is not necessarily indicative of any performance to be expected in the future. See the sections entitled Risk Factors and Cautionary Statement Regarding Forward-Looking Statements beginning on pages 17 and 25, respectively, of this proxy statement/prospectus.
Market Price and Dividend Data
The following table sets forth the high and low sales prices of Dominion Energy common stock as reported on the NYSE and the quarterly cash dividends declared per share in respect of Dominion Energy common stock for the calendar quarters indicated.
Dominion Energy | ||||||||||||
Price Range | ||||||||||||
High | Low | Dividends | ||||||||||
2016 |
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First Quarter |
$ | 75.18 | $ | 66.25 | $ | 0.700 | ||||||
Second Quarter |
77.93 | 68.71 | 0.700 | |||||||||
Third Quarter |
78.97 | 72.49 | 0.700 | |||||||||
Fourth Quarter |
77.32 | 69.51 | 0.700 | |||||||||
2017 |
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First Quarter |
$ | 79.36 | $ | 70.87 | $ | 0.755 | ||||||
Second Quarter |
81.65 | 76.17 | 0.755 | |||||||||
Third Quarter |
80.67 | 75.40 | 0.755 | |||||||||
Fourth Quarter |
85.30 | 75.75 | 0.770 | |||||||||
2018 |
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First Quarter through February 13, 2018 |
$ | 81.67 | $ | 72.80 |
15
Dividends on Dominion Energy common stock are paid as declared by the Dominion Energy board. On January 26, 2018, the Dominion Energy board declared a quarterly dividend of $0.835 per share payable on March 20, 2018 to shareholders of record on March 2, 2018. Dividends are typically paid on the 20th of March, June, September and December of each year.
As of January 31, 2018, Dominion Energy had approximately 651.5 million shares of its common stock outstanding, and there were approximately 123,000 holders of record of Dominion Energy common stock.
16
In addition to the other information included or incorporated by reference into this proxy statement/prospectus, including the matters addressed in the section entitled Cautionary Statement Regarding Forward-Looking Statements beginning on page 25 of this proxy statement/prospectus, you should carefully consider the following risks before deciding how to vote on the proposals set forth in this document. In addition, you should read and consider the risks associated with each of the businesses of Dominion Energy and SCANA because these risks may also affect the combined company. A description of the material risks can be found in the Annual Reports on Form 10-K for the fiscal year ended December 31, 2016 for each of Dominion Energy and SCANA, as updated by any subsequent Quarterly Reports on Form 10-Q, all of which are filed with the SEC and incorporated by reference into this proxy statement/prospectus. You should also read and consider the other information in this proxy statement/prospectus and the other documents incorporated by reference into this proxy statement/prospectus. See the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus.
Risk Factors Relating to the Merger
Because the market price of Dominion Energy common stock will fluctuate, SCANA shareholders cannot be certain of the market value of the merger consideration they will receive.
Upon completion of the merger, each outstanding share of SCANA common stock (other than cancelled shares) will be converted into the right to receive 0.6690 of a share of Dominion Energy common stock. The market value of Dominion Energy common stock received in the merger may vary significantly from the closing price of Dominion Energy common stock on the date Dominion Energy and SCANA announced the merger, on the date that this proxy statement/prospectus is mailed to SCANA shareholders, or on the date of the special meeting. Any change in the market price of Dominion Energy common stock prior to the completion of the merger will affect the market value of the merger consideration that SCANA shareholders will receive upon completion of the merger, which may not occur until a significant period of time has passed since the date of the special meeting, and there will be no adjustment to the merger consideration for changes in the market price of either shares of Dominion Energy common stock or shares of SCANA common stock. Neither Dominion Energy nor SCANA is permitted to terminate the merger agreement because of changes in the market price of SCANA common stock or Dominion Energy common stock.
Stock price changes may result from a variety of factors that are beyond the control of Dominion Energy and SCANA, including, but not limited to, general market and economic conditions, changes in the companies respective businesses, operations and prospects, regulatory considerations, litigation and speculation regarding the likelihood that the merger will be completed and the timing of completion. Therefore, at the time of the special meeting you will not know the precise market value of the consideration you will receive upon completion of the merger. You should obtain current market quotations for shares of Dominion Energy common stock and for shares of SCANA common stock.
The completion of the merger is subject to the receipt of consents, approvals and/or findings from governmental entities, which may impose conditions that could have an adverse effect on Dominion Energy or SCANA or could cause either Dominion Energy or SCANA to abandon the merger. The completion of the merger is also subject to there not having been substantive changes in certain South Carolina laws that have or would reasonably be expected to have an adverse effect on SCANA or its subsidiaries or orders of governmental entities or changes in law that impose any condition that would reasonably be expected to result in specified changes to the SCPSC petition.
Dominion Energy and SCANA are not required to complete the merger until after the applicable waiting period under the HSR Act expires or terminates and the requisite authorizations, approvals, consents and/or permits are received from the FERC, NRC, SCPSC, NCUC and GPSC. Any of the relevant governmental entities
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may oppose the merger, fail to approve the merger, fail to make required findings in favor of the merger, or impose certain requirements or obligations as conditions for their consent, approval or findings or in connection with their review. Regulatory approvals of the merger or findings with respect to the merger may not be obtained on a timely basis or at all, and such approvals or findings may include conditions that could have an adverse effect on Dominion Energy and/or SCANA, and/or result in the abandonment of the merger. The terms of any conditions imposed in order to obtain the requisite regulatory approvals or findings may not be known by the date of the special meeting. Neither Dominion Energy nor SCANA can provide any assurance that they will obtain the necessary approvals or findings or that any required conditions will not have an adverse effect on Dominion Energy following the merger. If SCANA shareholders vote in favor of the merger proposal at the special meeting, Dominion Energy or SCANA may make decisions after the special meeting to waive a condition or approve certain actions required to obtain regulatory approvals or findings without seeking further approval of the SCANA shareholders.
Subject to the terms and conditions set forth in the merger agreement, the merger agreement may require Dominion Energy to accept conditions from regulators that could adversely impact Dominion Energy after the merger without either of Dominion Energy or SCANA having the right to refuse to close the merger on the basis of those regulatory conditions, except that Dominion Energy is generally not required, and SCANA is generally not permitted without Dominion Energys prior approval, to take any action or accept any condition that results in a burdensome condition, as described in The Merger AgreementReasonable Best Efforts to Obtain Regulatory Approvals on page 92 of this proxy statement/prospectus.
In addition, the merger agreement provides that Dominion Energy (but not SCANA) will have the right to refuse to complete the merger if, since the date of the merger agreement, any governmental entity shall have enacted any order, or there shall have been any change in law (including the BLRA and the other laws governing South Carolina public utilities), which imposes any material change to the terms, conditions or undertakings set forth in the SCPSC petition, or any significant changes to the economic value of the proposed terms set forth in the SCPSC petition, in each case as determined by Dominion Energy in good faith.
The merger agreement further provides that Dominion Energy (but not SCANA) will have the right to refuse to complete the merger if there shall have occurred any substantive change in the BLRA or other laws governing South Carolina public utilities which has or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries. There is currently pending before the South Carolina Senate a bill that would make substantive changes to the BLRA. This bill (H.4375) has passed the South Carolina House of Representatives. If this bill becomes law, Dominion Energy would not be obligated to complete the merger if it is determined that the bill has or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries.
Certain lawsuits and regulatory actions have been filed against SCANA and SCE&G in connection with the abandonment of the NND project. If the relief requested in these matters (including a request for declaratory judgment that the BLRA is unconstitutional) is granted, Dominion Energy might not be obligated to complete the merger.
Dominion Energy and SCANA can provide no assurance that these risks will not materialize and either adversely impact Dominion Energy after the completion of the merger or, if such conditions rise to the thresholds discussed above, some of which, as described above, are in the subjective determination of Dominion Energy acting in good faith, or if the required authorizations, approvals, consents and/or permits are not obtained or received, result in the abandonment of the merger. See the sections entitled The MergerRegulatory Approvals Required for the Merger beginning on page 67 of this proxy statement/prospectus and The Merger AgreementConditions to Completion of the Merger beginning on page 88 of this proxy statement/prospectus.
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Failure to complete the merger could negatively impact the stock price and the future business and financial results of SCANA.
If the merger is not completed, the ongoing business of SCANA may be adversely affected and SCANA could be subject to several risks, including the following:
| the price of SCANA common stock may decline to the extent that the current market price reflects an expectation by the market that the merger will be completed; |
| obligations to pay certain costs relating to the merger, such as legal, accounting, financial advisory, filing, printing and mailing fees; |
| the disruption of SCANAs ongoing business or inconsistencies in its services, standards, controls, procedures and policies due to managements focus on the merger, any of which could adversely affect the ability of SCANA to maintain relationships with customers, regulators, vendors and employees, or could otherwise adversely affect the business and financial results of SCANA, without realizing any of the benefits of having the merger completed; |
| the potential negative impact on SCANA ultimately resolving the rate and regulatory issues, including pending investigations and legal challenges, relating to the abandonment of the NND project in a manner satisfactory to SCANA on account of SCANA working with Dominion Energy to pursue the resolution of these issues as contemplated by the merger agreement rather than pursuing its regulatory and legal options for resolving these issues independently of considerations and obligations related to the merger; and |
| the loss of other opportunities that could be beneficial to SCANA that could have been pursued during the pendency of the merger, without realizing any of the benefits of having the merger completed. |
In addition to the above risks, SCANA may be required, under certain circumstances, to pay to Dominion Energy a termination fee of $240 million.
If the merger is not completed, SCANA cannot assure SCANA shareholders that these risks will not materialize and will not materially affect its business, financial results and stock price.
The merger agreement contains provisions that limit SCANAs ability to pursue alternatives to the merger, which could discourage a potential competing acquirer of SCANA or could result in any competing proposal being at a lower price than it might otherwise be.
The merger agreement contains provisions that, subject to certain exceptions, restrict SCANAs ability to initiate, solicit, knowingly encourage, facilitate or discuss competing third-party proposals to acquire all or a significant part of SCANA, or provide information to a third party that could reasonably be expected to lead to such a proposal. See the section entitled The Merger AgreementNon-Solicitation of Alternative Proposals on page 95 of this proxy statement/prospectus. In addition, Dominion Energy generally has an opportunity to offer to modify the terms of the merger in response to any superior acquisition proposal that may be made before the SCANA board is permitted to withdraw or qualify its recommendation. In some circumstances on termination of the merger agreement, SCANA may be required to pay to Dominion Energy a termination fee of $240 million. See the section entitled The Merger AgreementNon- Solicitation of Alternative Proposals beginning on page 95 of this proxy statement/prospectus, The Merger AgreementTermination of the Merger Agreement beginning on page 99 of this proxy statement/prospectus and The Merger AgreementTermination Fees beginning on page 100 of this proxy statement/prospectus.
These provisions, which the SCANA board regards as customary for transactions for this type, could discourage a potential competing acquirer that might have an interest in acquiring all or a significant part of SCANA from considering or proposing that acquisition, even if it were prepared to pay consideration with a higher per share cash or market value than the merger consideration, or might result in a potential competing acquirer proposing to pay a lower price than it might otherwise have proposed to pay because of the added expense of the termination fee that may become payable by SCANA in certain circumstances.
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The pendency of the merger could adversely affect the business and operations of SCANA.
In connection with the pending merger, some current or prospective customers or vendors of SCANAs utilities may delay or defer decisions regarding their existing or proposed relationships with those utilities, which could negatively impact the revenues, earnings, cash flows and expenses of SCANA, regardless of whether the merger is completed. Similarly, current and prospective employees of SCANA and its utilities may experience uncertainty about their future roles following the merger, which may materially adversely affect the ability of SCANA and its utilities to attract and retain key personnel during the pendency of the merger. In addition, due to operating covenants in the merger agreement, during the pendency of the merger, SCANA and its utilities may be unable to pursue strategic transactions, undertake significant capital projects, undertake certain significant financing or other specified transactions or pursue actions that are not in the ordinary course of business, even if such actions would prove beneficial.
Certain directors and executive officers of SCANA may have interests in the merger that may differ from, or be in addition to, the interests of SCANA shareholders.
Executive officers of SCANA negotiated the terms of the merger agreement with their counterparts at Dominion Energy, and the SCANA board approved the transactions contemplated by the merger agreement. In considering these facts and the other information contained in this proxy statement/prospectus, you should be aware that SCANAs executive officers and directors may have interests in the merger that may be different from, or in addition to, the interests of SCANA shareholders. These interests include the accelerated vesting of equity awards, arrangements that provide for severance benefits if the employment of a SCANA executive officer is terminated under specified circumstances following the completion of the merger and rights to indemnification and directors and officers liability insurance that will survive the completion of the merger. For a detailed discussion of the interests that SCANAs directors and executive officers may have in the merger, please see the section entitled The MergerInterests of SCANAs Directors and Executive Officers in the Merger beginning on page 72 of this proxy statement/prospectus.
SCANA shareholders will have a reduced ownership and voting interest in the combined company.
SCANA shareholders currently have the right to vote in the election of directors of SCANA and on certain other matters affecting SCANA. Following the merger, each SCANA shareholder will become a shareholder of Dominion Energy with a percentage ownership of the combined company that is much smaller than the shareholders percentage ownership of SCANA. It is expected that the former SCANA shareholders as a group will own approximately 13% of the outstanding shares of Dominion Energy common stock immediately after the completion of the merger. Because of this, the SCANA shareholders, as a group, will have substantially less influence on the management and policies of Dominion Energy than they now have, as a group, with respect to the management and policies of SCANA.
Dominion Energy expects to incur substantial expenses related to the merger.
Dominion Energy expects to incur relatively significant expenses in connection with completing the merger. While Dominion Energy has assumed that a certain level of transaction and integration expenses would be incurred, there are a number of factors beyond its control that could affect the total amount or the timing of its integration expenses. Many of the expenses that will be incurred, by their nature, are difficult to estimate accurately at the present time.
Following the merger, Dominion Energy may be unable to successfully integrate SCANAs businesses.
Dominion Energy and SCANA currently operate as independent public companies. After the merger, Dominion Energy will be required to devote significant management attention and resources to integrating
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SCANAs business. Potential difficulties Dominion Energy may encounter in the integration process include the following:
| the complexities associated with integrating SCANA and its utility businesses, while at the same time continuing to provide consistent, high quality services; |
| the complexities of integrating a company with different core services, markets and customers; |
| the inability to attract and retain key employees; |
| potential unknown liabilities and unforeseen increased expenses, delays or regulatory conditions associated with the merger; |
| difficulties in managing political and regulatory conditions related to SCANAs utility businesses after the merger; |
| the cost recovery plan includes a moratorium on filing requests for adjustments in SCE&Gs base electric rates until 2021 if the merger is approved by the SCPSC, which would limit Dominion Energys ability to recover increases in non-fuel related costs of electric operations for SCE&Gs customers; and |
| performance shortfalls as a result of the diversion of Dominion Energy managements attention caused by completing the merger and integrating SCANAs utility businesses. |
For these reasons, you should be aware that it is possible that the integration process following the merger could result in the distraction of Dominion Energys management, the disruption of Dominion Energys ongoing business or inconsistencies in its services, standards, controls, procedures and policies, any of which could adversely affect the ability of Dominion Energy to maintain or establish relationships with current and prospective customers, vendors and employees or could otherwise adversely affect the business and financial results of Dominion Energy.
Dominion Energy and SCANA may be materially adversely affected by negative publicity related to the merger and in connection with other related matters, including the abandonment of the NND project.
From time to time, political and public sentiment in connection with the merger and in connection with other matters, including the abandonment of the NND project, may result in a significant amount of adverse press coverage and other adverse public statements affecting Dominion Energy and SCANA. Adverse press coverage and other adverse statements, whether or not driven by political or public sentiment, may also result in investigations by regulators, legislators and law enforcement officials or in legal claims. Responding to these investigations and lawsuits, regardless of the ultimate outcome of the proceedings, as well as responding to and addressing adverse press coverage and other adverse public statements, can divert the time and effort of senior management from the management of Dominion Energys and SCANAs respective businesses.
Addressing any adverse publicity, governmental scrutiny or enforcement or other legal proceedings is time consuming and expensive and, regardless of the factual basis for the assertions being made, can have a negative impact on the reputation of Dominion Energy and SCANA, on the morale and performance of their employees and on their relationships with their respective regulators, customers and commercial counterparties. It may also have a negative impact on their ability to take timely advantage of various business and market opportunities. The direct and indirect effects of negative publicity, and the demands of responding to and addressing it, may have a material adverse effect on Dominion Energys and SCANAs respective business, financial condition, results of operations and prospects.
The market price of Dominion Energy common stock after the merger may be affected by factors different from those affecting the market price of SCANA common stock currently.
Upon completion of the merger, holders of SCANA common stock will become holders of Dominion Energy common stock. Dominion Energys business differs in important respects from that of SCANA, and,
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accordingly, the results of operations of the combined company and the market price of Dominion Energy common stock after the completion of the merger may be affected by factors different from those currently affecting the independent results of operations of each of Dominion Energy and SCANA. For a discussion of the businesses of Dominion Energy and SCANA and of some important factors to consider in connection with those businesses, see the documents incorporated by reference in this proxy statement/prospectus and referred to under the section entitled Where You Can Find More Information on page 136 of this proxy statement/prospectus.
The market value of Dominion Energy common stock could decline if large amounts of its common stock are sold following the merger.
Following the merger, shareholders of Dominion Energy and former SCANA shareholders will own interests in a combined company operating an expanded business with more assets and a different mix of liabilities. Current shareholders of Dominion Energy and SCANA may not wish to continue to invest in the combined company, or may wish to reduce their investment in the combined company, in order to comply with institutional investing guidelines, to increase diversification or to track any rebalancing of stock indices in which Dominion Energy common stock or SCANA common stock is or was included. If, following the merger, large amounts of Dominion Energy common stock are sold, the price of its common stock could decline.
The merger may not be accretive to operating earnings and may cause dilution to Dominion Energys earnings per share, which may negatively affect the market price of Dominion Energy common stock.
Dominion Energy currently anticipates that the merger will be immediately accretive to Dominion Energys forecasted operating earnings per share on a standalone basis. This expectation is based on preliminary estimates, which may materially change. Dominion Energy may encounter additional transaction and integration-related costs, may fail to realize all of the benefits anticipated in the merger or be subject to other factors that affect preliminary estimates or its ability to realize operational efficiencies. Any of these factors could cause a decrease in Dominion Energys operating earnings per share or decrease or delay the expected accretive effect of the merger and contribute to a decrease in the price of Dominion Energys common stock. Dominion Energy expects that the initial effect of the merger on its GAAP earnings will be a decrease in such earnings due to anticipated charges for refunds to SCE&G electric customers, write-offs of regulatory assets and transaction costs.
Pending litigation against SCANA and Dominion Energy could result in an injunction preventing the completion of the merger or may adversely affect the combined companys business, financial condition or results of operations following the merger.
Following the announcement of the merger, three (3) lawsuits have been filed asserting claims relating to the merger. First, an existing derivative lawsuit was amended to assert direct claims on behalf of a putative class of SCANA shareholders in the Court of Common Pleas of the County of Richland, South Carolina against the members of the SCANA board, Dominion Energy and Merger Sub, alleging breaches of various fiduciary duties by the members of the SCANA board in connection with the merger and alleging that Dominion Energy and Merger Sub aided and abetted such alleged breaches. Second, two (2) putative class actions on behalf of SCANA shareholders have been filed in the Court of Common Pleas of the Counties of Lexington and Richland, South Carolina, respectively, against SCANA, the members of the SCANA board, Dominion Energy and Merger Sub, alleging breaches of various fiduciary duties by the members of the SCANA board in connection with the merger and alleging that SCANA, Dominion Energy and Merger Sub aided and abetted such alleged breaches. Among other remedies, the plaintiffs in each case seek to enjoin the merger and rescind the merger agreement. In addition, the second and third lawsuits seek in the alternative, should the merger be completed, an award of unspecified monetary damages.
While the defendants believe that dismissal is warranted, the outcome of any such litigation is inherently uncertain. The defense or settlement of any lawsuit or claim that remains unresolved at the time the merger closes may adversely affect the combined companys business, financial condition or results of operation. See the
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section entitled The MergerLitigation Relating to the Merger beginning on page 71 of this proxy statement/prospectus for more detail.
The unaudited pro forma combined financial information and prospective financial information included in this proxy statement/prospectus are presented for illustrative purposes only and do not represent the actual financial position or results of operations of the combined company following the merger.
The unaudited pro forma combined financial information and prospective financial information contained in this proxy statement/prospectus are presented for illustrative purposes only, contain a variety of adjustments, assumptions and preliminary estimates and do not represent the actual financial position or results of operations of Dominion Energy and SCANA prior to the merger or that of the combined company following the merger for several reasons. See the sections entitled Equivalent and Comparative Per Share Information beginning on page 14 of this proxy statement/prospectus and Unaudited Pro Forma Consolidated Financial Statements beginning on page 112 of this proxy statement/prospectus.
The actual financial positions and results of operations of Dominion Energy and SCANA prior to the merger and those of the combined company following the merger may not be consistent with, or evident from, the unaudited pro forma combined financial information and prospective financial information included in this proxy statement/prospectus. In addition, the assumptions used in preparing the unaudited pro forma combined financial information and prospective financial information included in this proxy statement/prospectus may not prove to be accurate and may be affected by other factors. Any significant changes in the share price of Dominion Energy may cause a significant change in the purchase price and the pro forma financial information.
Dominion Energy has goodwill and other intangible assets on its balance sheet, and these amounts will increase as a result of the merger. If its goodwill or other intangible assets become impaired in the future, Dominion Energy may be required to record a significant, non-cash charge to earnings and reduce its shareholders equity.
Upon the completion of the merger, Dominion Energy will record as goodwill the excess of the purchase price paid by Dominion Energy over the fair value of SCANAs assets and liabilities as determined for financial accounting purposes. Under GAAP, intangible assets are reviewed for impairment on an annual basis or more frequently whenever events or circumstances indicate that its carrying value may not be recoverable. If Dominion Energys intangible assets, including goodwill as a result of the merger, are determined to be impaired in the future, Dominion Energy may be required to record a significant, non-cash charge to earnings during the period in which the impairment is determined.
The shares of Dominion Energy common stock to be received by SCANA shareholders as a result of the merger will have different rights from the shares of SCANA common stock.
Upon completion of the merger, SCANA shareholders will become Dominion Energy shareholders and their rights as shareholders will be governed by the Virginia Stock Corporation Act, which we refer to as the VSCA, and Dominion Energys amended and restated articles of incorporation, which we refer to as the Dominion Energy charter, and amended and restated bylaws, which we refer to as the Dominion Energy bylaws. The rights associated with SCANA common stock are different from the rights associated with Dominion Energy common stock. See the section entitled Comparison of Shareholder Rights beginning on page 122 of this proxy statement/prospectus for a summary of the material differences between the rights of holders of Dominion Energy common stock and the rights of holders of SCANA common stock.
The merger may fail to qualify as a tax-free reorganization for federal tax purposes, resulting in the SCANA shareholders recognition of taxable gain or loss in respect of their SCANA common stock.
Dominion Energy and SCANA intend the merger to qualify as a reorganization within the meaning of Section 368(a) of the Code. At the time of effectiveness of the registration statement relating to this proxy
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statement/prospectus, Dominion Energy and SCANA have obtained written tax opinions from Morgan, Lewis & Bockius, LLP, special tax counsel to Dominion Energy, and from Mayer Brown LLP, legal counsel to SCANA, respectively, that the merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In addition, Dominion Energy and SCANA expect to receive written tax opinions from Morgan, Lewis & Bockius LLP and Mayer Brown, LLP, respectively, dated the closing date of the merger, to the effect that the merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. Such tax opinions were and will be based on customary assumptions and representations made by Dominion Energy and SCANA, as well as certain covenants and undertakings by Dominion Energy and SCANA. Such opinions will not bind the Internal Revenue Service, which we refer to as the IRS, or any court, or prevent the IRS from adopting a contrary position. In addition, neither Dominion Energy nor SCANA intends to request a ruling from the IRS regarding the U. S. federal income tax consequences of the merger. Accordingly, even with the tax opinions that conclude that the merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, no assurance can be given that the IRS, will not challenge the conclusions reflected in the opinion or that a court would not sustain such a challenge. If the merger fails to qualify as a reorganization, a SCANA shareholder generally would recognize gain or loss for U. S. federal income tax purposes on each share of SCANA common stock surrendered in an amount equal to the difference between such shareholders adjusted tax basis in that share and the fair market value of the merger consideration received in exchange for that share upon completion of the merger. SCANA shareholders should read the section entitled The MergerU. S. Federal Income Tax Consequences of the Merger on page 65 of this proxy statement/prospectus and consult their own tax advisors regarding the U. S. federal income tax consequences of the merger to SCANA shareholders in their particular circumstances.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement/prospectus and the information incorporated by reference in this proxy statement/prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements are subject to risks and uncertainties, and actual results might differ materially from those discussed in, or implied by, the forward-looking statements. Forward-looking statements are based on the current beliefs and assumptions of the management of Dominion Energy and SCANA and can often be identified by terms and phrases that include anticipate, believe, intend, estimate, expect, continue, should, would, could, may, plan, project, predict, will, potential, forecast, target, guidance, outlook, or other similar terminology. Various factors may cause actual results to be materially different than the suggested outcomes within forward-looking statements; accordingly, there is no assurance that such results will be realized.
In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements included or incorporated by reference in this proxy statement/prospectus might not occur or might occur to a different extent or at a different time than described. Actual results may differ materially from the current expectations of Dominion Energy and SCANA depending on a number of factors affecting their businesses and risks associated with the successful execution of the merger and the integration and performance of their businesses following the merger. In evaluating these forward-looking statements, you should carefully consider the risks described herein and in other reports that Dominion Energy and SCANA file with the SEC. See the sections entitled Risk Factors beginning on page 17 of this proxy statement/prospectus and Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus. Factors which could have a material adverse effect on operations and future prospects or which could cause events or circumstances to differ from the forward-looking statements include, but are not limited to:
| the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement; |
| the risk that SCANA shareholders may not approve the merger proposal; |
| the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated, may be burdensome and/or fail to satisfy the requirements of the merger agreement; |
| the risk that any repeal of or amendment to the BLRA may be enacted that does not satisfy the requirements of the merger agreement; |
| the risk that a condition to closing of the merger may not be satisfied; |
| the timing of the completion the merger; |
| the possibility that the anticipated benefits from the merger cannot be fully realized or may take longer to realize than expected; |
| risks related to disruption of management time from ongoing business operations due to the merger; |
| the possibility that costs, difficulties or disruptions related to the integration of SCANAs operations into Dominion Energy will be greater than expected; |
| the timing and extent of changes in interest rates, commodity prices and demand and market prices for electricity; |
| changes in the future cash requirements of Dominion Energy following the merger, whether caused by unanticipated increases in capital expenditures or otherwise; |
| risks related to any legal proceedings that have been or may be instituted against Dominion Energy, SCANA and/or others relating to the merger; and |
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| the effect of the announcement of the merger on Dominion Energys and SCANAs operating results and businesses generally. |
Except as otherwise required by law, neither Dominion Energy nor SCANA is under any obligation, and each expressly disclaims any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this proxy statement/prospectus are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof.
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120 Tredegar Street
Richmond, Virginia 23219
(804) 819-2000
Headquartered in Richmond, Virginia and incorporated in Virginia in 1983, Dominion Energy is one of the nations largest producers and transporters of energy, with a portfolio of approximately 26,000 megawatts of electric generation, 66,100 miles of natural gas transmission, gathering, storage and distribution pipelines and 64,500 miles of electric transmission and distribution lines. Dominion Energys strategy is to be a leading provider of electricity, natural gas and related services to customers primarily in the eastern and Rocky Mountain regions of the U.S. Dominion Energy operates one of the largest natural gas storage systems in the U.S. with 1 trillion cubic feet of capacity, and serves nearly 6 million utility and retail energy customers.
Dominion Energy is focused on expanding its investment in regulated and long-term contracted electric generation, transmission and distribution and regulated natural gas transmission and distribution infrastructure. Dominion Energys nonregulated operations include merchant generation, energy marketing and price risk management activities and natural gas retail energy marketing operations. Dominion Energys operations are conducted through various subsidiaries, including (i) Virginia Electric and Power Company, a regulated public utility that generates, transmits and distributes electricity for sale in Virginia and northeastern North Carolina, which we refer to as Virginia Power, (ii) Dominion Energy Gas Holdings, LLC, a holding company for the majority of Dominion Energys regulated natural gas businesses, which conducts business activities through a regulated interstate natural gas transmission pipeline and underground storage system, a local, regulated natural gas transportation and distribution network and natural gas gathering and processing facilities, which we refer to Dominion Energy Gas, and (iii) Dominion Energy Questar Corporation, a holding company for Dominion Energys primarily regulated natural gas businesses, including retail natural gas distribution in Utah, Wyoming and Idaho and related natural gas development and production. Dominion Energy also owns the general partner, 50.6% of the common and subordinated units and 37.5% of the convertible preferred interests in Dominion Energy Midstream Partners, LP, which was formed by Dominion Energy to own and grow a portfolio of natural gas terminaling, processing, storage, transportation and related assets.
Dominion Energys common stock is listed on the NYSE under the symbol D.
Additional information about Dominion Energy is included in the documents incorporated by reference into this proxy statement/prospectus. See the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus.
100 SCANA Parkway
Cayce, South Carolina 29033
(803) 217-9000
SCANA is a South Carolina corporation created in 1984 as a holding company. SCANA, through its wholly owned regulated subsidiaries, is primarily engaged in the generation, transmission, distribution and sale of electricity in the central, southern and southwestern portions of South Carolina and in the purchase, transmission and sale of natural gas in North Carolina and South Carolina. SCANA, through a wholly owned nonregulated subsidiary also markets natural gas to retail customers in Georgia and to wholesale customers in the southeast United States.
SCANA common stock is traded on the NYSE under the symbol SCG.
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Additional information about SCANA and its subsidiaries is included in the documents incorporated by reference into this proxy statement/prospectus. See the section entitled Where You Can Find More Information on page 136 of this proxy statement/prospectus.
120 Tredegar Street
Richmond, Virginia 23219
(804) 819-2000
Merger Sub, a wholly owned subsidiary of Dominion Energy, is a South Carolina corporation formed on December 29, 2017 for the purpose of effecting the merger. To date, Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement in connection with the merger.
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The special meeting will be held at [a.m./p.m.], Eastern Daylight Time on , 2018 at .
Purpose of the Special Meeting
The special meeting is being held for the SCANA shareholders to consider and vote on the following proposals:
1. | the proposal to approve the merger agreement, pursuant to which Merger Sub will be merged with and into SCANA, with SCANA surviving the merger as a wholly owned subsidiary of Dominion Energy, and each outstanding share of SCANA common stock will be converted into the right to receive 0.6690 of a share of Dominion Energy common stock, with cash paid in lieu of fractional shares; |
2. | the proposal to approve, on a non-binding advisory basis, the compensation to be paid to SCANAs named executive officers that is based on or otherwise relates to the merger; and |
3. | the proposal to adjourn the special meeting, if necessary or appropriate, in the view of the SCANA board to solicit additional proxies in favor of the merger proposal if there are not sufficient votes at the time of the special meeting to approve the merger proposal. |
Recommendations of the SCANA Board
The SCANA board unanimously (i) determined that it is in the best interests of SCANA and the SCANA shareholders that SCANA enter into the merger agreement and complete the merger and the other transactions contemplated by the merger agreement on the terms and subject to the conditions set forth in the merger agreement, (ii) adopted the merger agreement and approved the transactions contemplated by the merger agreement, including the merger, (iii) directed that the approval of the merger agreement be submitted to a vote at a meeting of the SCANA shareholders and (iv) resolved to recommend that the SCANA shareholders approve the merger agreement, which we refer to as the SCANA board recommendation. For a description of factors considered by the SCANA board in making the above recommendation, see the section entitled The MergerSCANAs Reasons for the Merger; Recommendation of the SCANA Board beginning on page 42 of this proxy statement/prospectus.
The SCANA board recommends that you vote (i) FOR the merger proposal, (ii) FOR the merger-related compensation proposal and (iii) FOR the adjournment proposal.
Record Date; Stock Entitled to Vote
Only holders of record of shares of SCANA common stock at the close of business on , 2018 are entitled to notice of, and to vote at, the special meeting and at any adjournment or postponement of the special meeting. We refer to this date as the record date for the special meeting. Upon written request by a SCANA shareholder, a list of SCANA shareholders entitled to vote at the special meeting will be available for inspection at SCANAs Corporate Headquarters, 100 SCANA Parkway, Cayce, South Carolina 29033, during business hours from , 2018 through the date of the special meeting. The list will also be available at the special meeting for examination by any shareholder of record of SCANA present at the special meeting.
As of the record date for the special meeting, the directors and executive officers of SCANA as a group owned and were entitled to vote shares of SCANA common stock, or approximately % of the outstanding shares of SCANA common stock on that date. SCANA currently expects that its directors and executive officers will vote their shares in favor of approval of the merger proposal, but none of SCANAs directors or executive officers have entered into any agreement obligating them to do so.
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A quorum requires the presence, in person or by proxy, of the holders of a majority of the shares of SCANA common stock outstanding and entitled to vote. A quorum is needed to conduct the votes on the merger proposal and the merger-related compensation proposal.
Approval of the merger proposal requires the affirmative vote of the holders of at least two-thirds of the outstanding shares of SCANA common stock.
The merger-related compensation proposal will be approved if more votes are cast in favor of the proposal than against the proposal. Because the vote on the merger-related compensation proposal is non-binding, if the merger agreement is approved by the SCANA shareholders and the merger is completed, the compensation that is the subject of the merger-related compensation proposal, which includes amounts SCANA is contractually obligated to pay, would still be paid regardless of the outcome of the non-binding advisory vote.
The adjournment proposal will be approved if more votes are cast in favor of the proposal than against the proposal.
Abstentions and Broker Non-Votes
Your failure to vote, or failure to instruct your broker, bank or other nominee to vote, or your abstention from voting, will have the same effect as a vote against the merger proposal, but will not be counted as a vote for or against the merger-related compensation proposal or the adjournment proposal.
Whether or not you plan to attend the special meeting, please promptly vote your shares of SCANA common stock by submitting a proxy to ensure your shares are represented at the meeting. You may also vote in person at the special meeting.
An admission ticket or proof of share ownership as of the record date is required to attend the special meeting in person. If you plan to use the admission ticket, please remember to detach the admission ticket from your proxy card before mailing your proxy card. If you forget to bring the admission ticket, you will be admitted to the special meeting only if you are listed as a shareholder of record as of the record date and you bring proof of identification. If you hold your shares through a broker, bank or other nominee, you must provide proof of ownership by bringing either a copy of the voting instruction card provided by your broker, bank or other nominee or a brokerage statement showing your share ownership as of the record date. If you are a shareholder of record and your shares are owned jointly and you need an additional admission ticket, you should contact the SCANA Corporate Secretary, SCANA Corporation, 220 Operation Way, Mail Code D133, Cayce, South Carolina 29033, or call 803-217-7568.
You may vote in person at the special meeting by submitting your signed proxy card or requesting a ballot at the special meeting. Please note, however, that if your shares of SCANA common stock are held in street name, which means your shares of SCANA common stock are held of record by a broker, bank or other nominee, and you wish to vote at the special meeting, you must bring to the special meeting a legal proxy from the record holder (your broker, bank or other nominee) of the shares of SCANA common stock authorizing you to vote at the special meeting.
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You should vote your proxy even if you plan to attend the special meeting. You can always change your vote at the special meeting or revoke your proxy before the special meeting.
Your enclosed proxy card includes specific instructions for voting your shares of SCANA common stock. SCANAs electronic voting procedures are designed to authenticate your identity and to ensure that your votes are accurately recorded. When the accompanying proxy is returned properly executed, the shares of SCANA common stock represented by it will be voted at the special meeting or any adjournment or postponement thereof in accordance with the instructions contained in the proxy.
If you return your signed proxy card without indicating how you want your shares of SCANA common stock to be voted with regard to a particular proposal, your shares of SCANA common stock will be voted in favor of each such proposal. Proxy cards that are returned without a signature will not be counted as present at the special meeting and cannot be voted.
If your shares of SCANA common stock are held in an account with a broker, bank or other nominee, you have received a separate voting instruction card in lieu of a proxy card and you must follow those instructions in order to vote.
Changing or Revoking Your Proxy or Voting Instructions
You have the power to change your vote (i.e., revoke your proxy) at any time before your proxy is voted at the special meeting. If you are a shareholder of record (i.e., you hold your shares directly in your name), you may accomplish this by granting a new proxy (by telephone, Internet or mail) bearing a later date or by attending the special meeting and voting in person (each of which automatically revokes the earlier proxy). However, your attendance at the special meeting alone will not revoke any proxy that you have previously given. If you hold your shares in street name, you must follow the instructions on the voting instruction card you received from your broker, bank or other nominee in order to change or revoke your instructions.
SCANA has engaged Georgeson, Inc. to assist in the solicitation of proxies for the special meeting and has agreed to pay them a fee of approximately $ for their services plus associated costs and expenses. In addition to the use of the mail, proxies may be solicited by officers and directors and regular employees of SCANA, without additional remuneration, by personal interview, telephone, facsimile or otherwise. SCANA will also request brokers, banks and nominees to forward proxy materials to the beneficial owners of shares of SCANA common stock held of record on the record date and will provide customary reimbursement to such firms for the cost of forwarding these materials.
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Upon completion of the merger, Merger Sub will be merged with and into SCANA. SCANA will be the surviving corporation.
At the effective time of the merger, each share of SCANA common stock, without par value, issued and outstanding immediately prior to the effective time of the merger (other than cancelled shares), whether represented by a SCANA stock certificate or in non-certificated form and represented by book-entry, will be automatically converted into the right to receive the merger consideration.
Dominion Energy will not issue fractional shares of Dominion Energy common stock in the merger. Instead, each SCANA shareholder who would otherwise be entitled to receive fractional shares of Dominion Energy common stock in the merger (after aggregating all fractional shares of Dominion Energy common stock issuable to such holder) will be entitled to an amount of cash, without interest, rounded to the nearest cent, equal to the product of (i) the amount of such fractional shares of Dominion Energy common stock issuable to such holder and (ii) the volume-weighted average price, rounded to four decimal places, of Dominion Energy common stock for the ten (10) consecutive trading days ending on and including the second (2nd) trading day prior to the effective time of the merger, which we refer to as the average price.
In 2007, lawmakers in South Carolina passed the BLRA which was intended to encourage investment in nuclear construction by enabling electric utilities to finance that investment by commencing to recover financing costs incurred during construction rather than having to wait until the units were placed into service. In 2008, SCE&G and Santee Cooper announced plans to construct the two Westinghouse AP1000 Advanced Passive Safety nuclear units in Jenkinsville, South Carolina which would serve as the centerpiece of the NND project. In 2009, the SCPSC approved SCE&Gs combined application pursuant to the BLRA and other laws seeking a certificate of environmental compatibility and public convenience and necessity and for a base load review order relating to the proposed construction and operation by SCE&G and Santee Cooper of the two nuclear units contemplated by the NND project. In 2012, SCE&G and Santee Cooper received a Combined Operating License from the Nuclear Regulatory Commission with respect to the NND project, and in 2013, SCE&G and Santee Cooper officially commenced nuclear construction on the two nuclear units that were the centerpiece of the NND project.
Senior management of SCANA and the SCANA board regularly review and discuss SCANAs business strategies and prospects.
In late 2016, in light of then-current facts and circumstances related to the electric and gas utility industries in general and SCANA in particular, senior management of SCANA and the SCANA board began preliminary preparations with respect to a process to proactively explore the possibility of a potential strategic transaction. These preliminary preparations included high-level discussions with Mayer Brown LLP, SCANAs outside legal counsel which we refer to as Mayer Brown, and with Morgan Stanley and RBC Capital Markets, although neither Morgan Stanley nor RBC Capital Markets was formally engaged by SCANA as a financial advisor in connection with exploring the possibility of a potential strategic transaction at this time. These discussions included consulting with Morgan Stanley and RBC Capital Markets regarding certain third parties that Morgan Stanley and RBC Capital Markets would suggest contacting regarding their interest in a potential strategic transaction involving SCANA if the SCANA board elected to commence a process to explore the possibility of a potential strategic transaction. In mid December 2016, the SCANA board, having completed these preliminary preparations, elected to defer a formal decision about whether or not to commence a process to explore the possibility of a potential strategic transaction until early January 2017. However, in late December 2016 there
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were developments that raised questions about the financial well-being of Westinghouse Electric Company LLC, which we refer to as Westinghouse, the primary contractor on the NND project with which SCE&G had a fixed price contract for Westinghouses services in connection with the construction of the NND project. In light of these developments, the SCANA board elected in early January 2017 not to commence a process to explore the possibility of a potential strategic transaction.
On March 29, 2017, Westinghouse filed voluntary petitions under Chapter 11 of the U.S. Bankruptcy Code and, in doing so, indicated an intention to reject the fixed price contract with SCE&G for Westinghouses services in connection with the construction of the NND project. In connection therewith, SCE&G and Santee Cooper entered into an Interim Assessment Agreement with Westinghouse concerning the NND project. This agreement was designed to allow for a transition and evaluation period during which SCE&G and Santee Cooper could continue to make progress on the NND project.
Westinghouses circumstances led SCANA to undertake an extensive analysis of possible alternatives then available for the NND project. In the months following the Westinghouse bankruptcy filing, in addition to extensively analyzing possible alternatives available for the NND project, senior management of SCANA and the SCANA board also considered various strategic alternatives available to SCANA under the circumstances.
In late March 2017, the chief executive officer of another utility company, which we refer to as Party A, approached Kevin B. Marsh, who was at that time the Chairman of the Board, President and Chief Executive Officer of SCANA, at an industry event they were both attending and told Mr. Marsh that Party A would be interested in talking to SCANA if SCANA decided at some point that it was interested in potentially pursuing a strategic transaction. Mr. Marsh informed D. Maybank Hagood, who was at that time the lead independent director of the SCANA board, of this conversation shortly after it occurred and then informed the SCANA board of this conversation at the next regularly scheduled board meeting on April 27, 2017.
On May 5, 2017, Mr. Marsh and Thomas F. Farrell II, Dominion Energys Chairman, President and Chief Executive Officer, met in Columbia, South Carolina. The meeting was arranged at the request of Mr. Farrell. At this meeting, Mr. Farrell conveyed to Mr. Marsh various concepts and potential terms related to a potential strategic transaction between SCANA and Dominion Energy. These concepts and terms, which Mr. Farrell indicated did not constitute an offer with respect to a potential transaction, included, among other things, preliminary indications regarding the potential consideration (consisting of up to 50% cash and the remainder Dominion Energy common stock and reflecting in total a premium of approximately 15% over the recent price of SCANA common stock) that would be received by SCANAs shareholders in connection with the transaction. Mr. Marsh told Mr. Farrell that SCANA was still in the process of evaluating the NND project and that he would get back to him when the evaluation process was substantially complete.
Later on May 5, 2017, a telephonic meeting of the SCANA board was held. Members of SCANAs senior management and representatives of Mayer Brown attended the meeting. At this meeting Mr. Marsh described for the SCANA board the meeting he had with Mr. Farrell earlier that day. The SCANA board discussed whether, in light of the preliminary interest in a potential strategic transaction expressed by Dominion Energy, it was prudent to commence a process to explore the possibility of a potential strategic transaction. In light of the considerable uncertainty surrounding the NND project and the challenges that third parties would have in valuing SCANA in light of those uncertainties, the SCANA board elected not to do so at that time.
On May 12, 2017, in a meeting arranged by Mr. Marsh, Mr. Marsh had a conversation with the chief executive officer of another utility company, which we refer to as Party B, and asked whether Party B might be interested in acquiring an ownership interest in the NND project. The chief executive officer responded that Party B would consider the matter. On May 22, 2017, the chief executive officer of Party B informed Mr. Marsh that Party B was not interested in acquiring an ownership interest in the NND project.
In mid-June 2017, Mr. Marsh called Mr. Farrell, telling him that SCANAs evaluation of the NND project was taking longer than expected and that he still planned to get back to him with respect to the conceptual
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proposal made by Mr. Farrell at their meeting on May 5, 2017 after more progress was made in the evaluation of the NND project.
On June 26, 2017, SCANA and Santee Cooper announced that the Interim Assessment Agreement with Westinghouse concerning the NND project had been amended to extend the term of the agreement through August 10, 2017. The agreement extension allowed SCANA and Santee Cooper additional time to maintain their options by continuing construction on the NND project, while examining relevant information for a thorough and careful assessment to determine the most prudent path forward.
On July 12, 2017, Mr. Marsh and Jimmy E. Addison, who was at that time the Executive Vice President and Chief Financial Officer of SCANA, met with Mr. Farrell and Mark F. McGettrick, Dominion Energys Executive Vice President and Chief Financial Officer, in Columbia, South Carolina. The meeting was arranged at the request of Mr. Marsh. At the meeting, Mr. Marsh stated that he was not going to respond to the conceptual proposal communicated by Mr. Farrell at their meeting on May 5, 2017, but rather wanted to provide Dominion Energy with an update regarding SCANAs evaluation of the NND project and to convey to Dominion Energy certain additional information about SCANAs situation and circumstances and about Santee Cooper and its generation needs for the future. Mr. Marsh asked Mr. Farrell if Dominion Energy had any interest in acquiring all or a portion of Santee Coopers interest in the NND project. Mr. Farrell said that Dominion Energy had no such interest. Rather, Mr. Farrell stated that Dominion Energy was interested in proceeding with a due diligence review for a strategic transaction with SCANA. Mr. Marsh responded that SCANA was not prepared to proceed with that step at that time. The participants in the meeting then discussed certain of the terms that would need to be considered if the parties were to proceed to evaluate a strategic transaction. At the end of this meeting, the representatives of SCANA and Dominion Energy agreed to keep in touch as developments warranted.
On July 17, 2017, an in-person meeting of the SCANA board was held. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley and RBC Capital Markets attended this meeting. At this meeting, the SCANA board engaged in an extensive evaluation and discussion of various alternatives available for the NND project: complete both units, complete one unit and abandon (or postpone further construction of) the other unit or abandon both units. The SCANA board noted that its decision with respect to these three alternatives was heavily dependent on Santee Coopers decision regarding its interest in the NND project. Also at that meeting, Mr. Marsh described to the SCANA board the meeting with the representatives of Dominion Energy on July 12, 2017 and further discussions ensued among the directors, management and the advisors regarding the NND project, the meeting with Dominion Energy and other related matters. After discussion, the SCANA board concluded not to pursue further discussions with Dominion Energy or others regarding a strategic transaction at that time.
On July 27, 2017, SCANA and Santee Cooper issued a joint press release that stated, among other things, that there were significant challenges to completing construction of one or both units of the NND project.
On July 31, 2017, Santee Cooper announced its decision to suspend construction of the NND project. Later on July 31, 2017, following a telephonic meeting of the SCANA board, SCE&G announced that, in light of its analysis and evaluation of the NND project and Santee Coopers decision to suspend construction, it would cease construction on the NND project. This announcement led various stakeholders, including rate payers, shareholders, legislative committees, regulators, and other government officials, to commence inquiries into, and in some cases legal challenges with respect to, SCANAs decision to cease construction on the NND project, many of which inquiries and legal challenges remain ongoing.
On August 1, 2017, SCE&G presented the results of its evaluation of the costs necessary to complete the NND project and the basis of its decision to abandon the project in an Allowable Ex Parte Communication Briefing to the SCPSC and filed a petition with the SCPSC under the BLRA seeking, among other things, recovery of certain costs related to the construction of the NND project in light of the decision to abandon construction.
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In early August 2017, Mr. Marsh received a call from an executive of another utility company, which we refer to as Party C. During this call, the executive of Party C indicated to Mr. Marsh that Party C would be interested in talking to SCANA if SCANA was interested in pursuing a strategic transaction. At about that time, the chief executive officer of Party A also contacted Mr. Marsh and re-expressed Party As interest in discussing a strategic transaction with SCANA if SCANA was interested in such a transaction. Also at about that time, Mr. Marsh had a conversation with the chief executive officer of Party B in which Party B did not raise the topic of a possible strategic transaction with SCANA. Mr. Marsh informed the SCANA board of these conversations shortly after they took place.
On August 15, 2017, SCE&G voluntarily withdrew the petition it had filed with the SCPSC on August 1, 2017 under the BLRA in response to concerns raised by various stakeholders with respect to the petition, and to allow adequate time for governmental officials to conduct their reviews.
On September 26, 2017, the office of Alan Wilson, the Attorney General for the State of South Carolina, issued an opinion of Robert D. Cook, the Solicitor General for the State of South Carolina, contending, among other things, that the BLRA was suspect under the Constitution of the United States and the Constitution of the State of South Carolina.
Following up on a telephone call from Mr. Farrell on September 29, 2017, on October 1, 2017, Mr. Marsh and Mr. Addison met with Mr. Farrell and Mr. McGettrick in Columbia, South Carolina at Mr. Farrells request. At this meeting, Mr. Farrell conveyed to Mr. Marsh and Mr. Addison various concepts and potential terms related to a potential strategic transaction between SCANA and Dominion Energy. These concepts and terms, which Mr. Farrell indicated did not constitute an offer with respect to a potential transaction, were intended to address the various issues that had arisen since SCE&G announced it was abandoning the NND project. These concepts and terms included consideration to SCANAs shareholders in the form of 70% Dominion Energy common stock and 30% cash, reflecting in total a premium of approximately 20% over the recent price of SCANA common stock, and an immediate rate credit for SCE&Gs customers, maintenance of rates related to the NND project at or below current levels, a reduced amortization period for SCANAs investment in the NND project and a write-off of a portion of that investment. The transaction would involve expedited due diligence and would be subject to regulatory approval of the terms. At the end of the meeting, Mr. Marsh told Mr. Farrell and Mr. McGettrick that SCANAs situation was very complex and involved a number of variables and considerations; however, Mr. Marsh also said that SCANAs board and management would consider what Mr. Farrell and Mr. McGettrick had conveyed and get back to them.
On October 4, 2017, Mr. Marsh called Mr. Farrell and told him that he would be presenting what Dominion Energy had conveyed at the October 1, 2017 meeting to the SCANA board. Mr. Marsh reiterated to Mr. Farrell that SCANAs present circumstances that had arisen out of the abandonment of the NND project were very complex and involved a number of variables and considerations.
Also on October 4, 2017, Mr. Marsh received a telephone call from the chief executive officer of Party A. The chief executive officer told Mr. Marsh that Party A had been separately approached about a potential purchase of Santee Cooper and wanted to discuss the potential for SCANA and Party A to also engage in a strategic transaction. The chief executive officer of Party A also asked that SCANA agree to exclusivity obligations to restrict SCANA from seeking or negotiating with other parties regarding a strategic transaction and indicated that Party A would be unwilling to make a proposal to SCANA at that time without such exclusivity terms. Mr. Marsh asked if there were any concepts or terms related to such a potential transaction involving SCANA that Party A was able to provide and the chief executive officer of Party A responded that Party A had no such concepts or terms to provide at that time, but that they were working on several ideas.
On October 6, 2017, a representative of Party C again indicated to Mr. Marsh in a meeting requested by the representative that Party C would be interested in talking to SCANA about a potential strategic transaction if
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SCANA was interested in considering such a transaction, but the representative did not propose any concepts or terms that would apply to such a possible transaction or any process that would apply to the consideration of such a transaction.
An in-person meeting of the SCANA board was held on October 6, 2017. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley and RBC Capital Markets attended this meeting. At this meeting, Mr. Marsh described for the SCANA board the recent discussions with each of Dominion Energy, Party A and Party C. The SCANA board, together with SCANAs management, Morgan Stanley, RBC Capital Markets and Mayer Brown, then discussed whether it was prudent to commence a limited process to identify potential acquirors of SCANA at that time. After weighing the considerations involved and the consequences of commencing such a process, the SCANA board determined to move forward with exploring the possibility of a strategic transaction with Dominion Energy and with Party A, including providing due diligence information to each of Dominion Energy and Party A, and authorized SCANAs management and advisors to proceed accordingly. After the representatives of Morgan Stanley and RBC Capital Markets were excused from the meeting, representatives of Mayer Brown summarized for the SCANA board the material terms proposed by Morgan Stanley and RBC Capital Markets regarding their respective engagements as a financial advisor to SCANA in connection with a possible strategic transaction.
After the conclusion of the meeting of the SCANA board on October 6, 2017, Mr. Marsh called Mr. Farrell to inform him of the SCANA boards decision to proceed to explore a potential transaction with Dominion Energy (without any exclusivity obligations on SCANA) and called the chief executive officer of Party A to inform the chief executive officer of the SCANA boards decision to proceed to explore a potential transaction with Party A (without any exclusivity obligations on SCANA).
On October 8, 2017, SCANA entered into a confidentiality agreement with Dominion Energy and a confidentiality agreement with Party A. Each of such confidentiality agreements contained standstill provisions which, among other things, restricted the ability of Dominion Energy and Party A to acquire or offer to acquire any SCANA securities and to submit any proposal or offer relating to a business combination with SCANA without the SCANA boards prior written consent, except that the standstill restrictions would terminate (other than those relating to acquisitions of SCANA securities) in the event that SCANA announced it had entered into a definitive agreement relating to a strategic transaction. In connection with or prior to entering into such confidentiality agreements, each of Dominion Energy and Party A sought restrictions on SCANAs ability to seek or negotiate with other parties regarding a possible strategic transaction, but SCANA did not agree to any such restrictions. Shortly thereafter, Dominion Energy and Party A were granted access to a data room and a due diligence process was commenced with Dominion Energy and with Party A.
On October 10, 2017, the chief executive officer of Party B called Mr. Marsh and indicated that Party B did not have any interest in acquiring an interest in the NND project but that Party B was willing to talk with SCANA about a potential strategic transaction if SCANA was considering strategic options. The chief executive officer of Party B did not propose any concepts or terms that would apply to such possible transaction or any process that would apply to the consideration of such a transaction.
Also, on October 10, 2017, Mr. Marsh, Mr. Addison and Jim O. Stuckey, SCANAs Senior Vice President and General Counsel, met with the chief executive officer and other representatives of Party A in Columbia, South Carolina. At this meeting, the representatives of Party A conveyed some of the benefits and opportunities that might result from a potential strategic transaction between SCANA and Party A and indicated that a combination of Party A and SCANA would involve SCANAs shareholders receiving solely the common stock of Party A in the transaction. The chief executive officer of Party A stated that Party A was not in the position at that time to indicate the amount of consideration SCANAs shareholders would receive. The chief executive officer again requested that SCANA agree to exclusivity obligations restricting SCANAs ability to seek or negotiate with other parties regarding a potential strategic transaction.
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A telephonic meeting of the SCANA board was held on October 12, 2017. Members of SCANAs senior management and representatives of Mayer Brown attended this meeting. At this meeting, Mr. Marsh described for the SCANA board the recent telephone call with Party B, recent meeting with Party A and recent communications from Dominion Energy indicating its desire to move forward with discussions expeditiously. Also, representatives of Mayer Brown summarized for the SCANA board certain matters related to the proposed engagements of Morgan Stanley and RBC Capital Markets as SCANAs financial advisors, including the material proposed terms for such engagements and the disclosures made by Morgan Stanley and RBC Capital Markets with respect to their respective material relationships with Dominion Energy, Party A, Party B and Party C. In consultation with Mayer Brown, the SCANA board determined that none of such relationships of SCANAs financial advisors were sufficiently material to adversely affect the ability of Morgan Stanley or RBC Capital Markets to act as financial advisors to SCANA in connection with a potential strategic transaction.
On October 13, 2017, the SCANA board, acting by written consent, approved the engagements of Morgan Stanley and RBC Capital Markets to serve as financial advisors to SCANA in connection with a possible strategic transaction and SCANA subsequently engaged each of Morgan Stanley and RBC Capital Markets.
Throughout October and November 2017, Dominion Energy conducted due diligence on SCANA and SCANA conducted reverse due diligence on Dominion Energy. However, no significant negotiation of terms of a potential strategic transaction between SCANA and Dominion Energy occurred during this time.
In mid-October 2017, Party As chief executive officer told Mr. Marsh that, in light of the considerable uncertainty resulting from SCE&Gs decision to abandon the NND project, including uncertainty regarding future electric rates, Party A was not able to narrow a valuation range for SCANA. Subsequent to this, Party A did not continue participation in the due diligence process and ceased to communicate interest in a potential strategic transaction with SCANA.
An in-person meeting of the SCANA board was held on October 24, 2017. Members of SCANAs senior management and representatives of Mayer Brown attended this meeting. Among other things discussed at this meeting, the SCANA board discussed the status of discussions with Dominion Energy and Party A as well as the status of SCANAs analysis of a potential strategic transaction more generally.
A telephonic meeting of the SCANA board was held on October 26, 2017. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley and RBC Capital Markets attended this meeting. Mr. Marsh informed the SCANA board of developments with respect to SCANAs consideration of a potential strategic transaction. Mr. Marsh explained that SCANA had primarily been focused on trying to reach a settlement on rates and other regulatory matters resulting from the decision to abandon the NND project and participating in legislative hearings related to the same and further discussions ensued among the directors, management and the advisors regarding the potential for a strategic transaction with Dominion Energy and regulatory and related matters. After discussion, the SCANA board concluded that it was prudent to continue to seek a rate settlement and also to continue discussions with Dominion Energy on a parallel path.
On October 31, 2017, SCANA announced that Mr. Marsh would retire as the chief executive officer of SCANA and SCE&G and that on January 1, 2018 Mr. Addison would become chief executive officer of SCANA and SCE&G, among other leadership changes.
On November 16, 2017, SCE&G publicly proposed a $4.8 billion comprehensive solution to outstanding rate and regulatory issues relating to the abandoned NND project. Based on the reaction from legislators and other stakeholders to the proposal, it quickly became clear that this proposal was not a viable solution to the rate and regulatory issues relating to the abandoned NND project.
During the week of November 20, 2017, Mr. McGettrick and Mr. Addison spoke on multiple occasions by telephone. Among other things discussed between Mr. McGettrick and Mr. Addison, Mr. McGettrick told
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Mr. Addison that Dominion Energy was considering providing an updated proposal to SCANA regarding a potential strategic transaction.
On November 27, 2017, at the request of Mr. Farrell, Mr. Marsh, Mr. Addison and Mr. Hagood met with Mr. Farrell and Mr. McGettrick in Columbia, South Carolina. At this meeting, Mr. Farrell conveyed a proposal with respect to a potential strategic transaction between SCANA and Dominion Energy, which Mr. Farrell stated did not constitute an offer for a potential transaction. Key terms of this proposal included consideration to SCANAs shareholders in the form of 75% to 80% Dominion Energy common stock and 20% to 25% cash, reflecting in total a premium of approximately 30% over the recent price of SCANA common stock, the retention of SCE&Gs headquarters in South Carolina and an updated plan for the regulatory resolution of the NND project which continued to include immediate cash refunds to SCE&G customers, prospective customer bill reductions for the NND project, a reduced amortization period for investments in the NND project, and a partial write-off of capital spent on the NND project. The representatives of SCANA told Mr. Farrell and Mr. McGettrick that the proposal would be shared with the SCANA board.
A telephonic meeting of the SCANA board was held on November 29, 2017. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley and RBC Capital Markets attended this meeting. Mr. Addison summarized the terms of the proposal conveyed by Dominion Energy on November 27, 2017. Mr. Addison expressed his view that in light of the current issues, risks and challenges facing SCANA, the Dominion Energy proposal merited further consideration. Mr. Marsh agreed with that assessment. The SCANA board then unanimously concluded that the Dominion Energy proposal warranted further consideration and authorized SCANAs management and advisors to pursue discussions with Dominion Energy accordingly.
On December 1, 2017, Mayer Brown provided to Dominion Energy an initial draft of a merger agreement with respect to a potential strategic transaction between SCANA and Dominion Energy. From this time until January 2, 2018, SCANA, Dominion Energy and their respective advisors, including McGuireWoods LLP, Dominion Energys outside legal counsel which we refer to as McGuireWoods, had extensive negotiations with respect to the terms of the proposed merger agreement.
On December 5, 2017, an in-person due diligence session was held in Richmond, Virginia between representatives of SCANA and representatives of Dominion Energy. Also on December 5, 2017, representatives of SCANA and Dominion Energy met to discuss the timeline for a potential transaction and the terms of Dominions proposal.
A telephonic meeting of the SCANA board was held on December 8, 2017. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley and RBC Capital Markets attended this meeting, as did a representative of McNair Law Firm, P.A., SCANAs South Carolina corporate counsel which we refer to as McNair. At this meeting, SCANAs management discussed the due diligence Dominion Energy was conducting on SCANA, the status of Dominion Energys review of the proposed merger agreement, the proposed timeline for a potential transaction with Dominion Energy and the terms of Dominion Energys anticipated updated proposal. After that discussion, at the request of the SCANA board, the representatives of Morgan Stanley and RBC Capital Markets indicated that they were unaware of any material change in their respective institutions material relationships disclosure previously provided to the SCANA board and that an updated material relationships disclosure would be provided before the next meeting of the SCANA board. Then, at the request of the SCANA board, each of Mayer Brown and McNair confirmed that their respective firms did not have a conflict of interest in representing SCANA in a transaction with Dominion Energy. SCANAs financial advisors then provided an overview of, among other things, (a) Dominion Energys historical share price performance for the last three years, (b) Dominion Energys capital expenditures plan, key earnings drivers and master limited partnership structure as provided by Dominion Energys management, (c) certain financial projections provided by Dominion Energys management relating to Dominion Energy for fiscal years 2017 through 2022, and (d) based on publicly available information and the projections provided by Dominion Energy, Dominion Energys credit profile. Next, Iris N. Griffin, who was at that time the Vice President of Finance and
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Treasurer of SCANA, made a presentation of SCANAs forecasted earnings per share growth rates, which had been prepared by SCANA management, using various rate and regulatory settlement scenarios. Such scenarios did not take into account potential federal tax reform given the uncertainty with respect to such reform at that time. Following Ms. Griffins presentation, representatives of Mayer Brown provided the SCANA board an overview of the terms of the proposed merger agreement, including, among other things, a description of the structure of the transaction, the closing conditions of the parties, the obligations of the parties with respect to pursuing regulatory approvals and the terms restricting SCANAs ability to solicit alternative transactions. At the end of the meeting, representatives of Mayer Brown reviewed with the members of the SCANA board their fiduciary duties under applicable law and asked the members of the SCANA board to provide updated information regarding past or current business or personal relationships with Dominion Energy or individuals associated with Dominion Energy in order to determine whether any potential conflicts of interest existed.
Also on December 8, 2017, McGuireWoods sent Mayer Brown a revised draft of the merger agreement that included, among other changes, a closing condition providing that the key terms related to the rate settlement would receive SCPSC approval with no deviation in terms from those proposed by Dominion Energy in connection with the merger.
On December 15, 2017, Dominion Energy provided SCANA with an updated proposal with respect to a potential strategic transaction between SCANA and Dominion Energy. This updated proposal reflected the due diligence that Dominion Energy had conducted on SCANA as well as the various discussions among the parties and their respective advisors to that point. Key terms of this updated proposal included: an all-stock, tax deferred transaction with a value of $54.50 per share of SCANA common stock (based on recent market prices of Dominion Energy common stock) reflecting an implied premium of approximately 27.9% over the closing price of SCANA common stock prior to a November 27, 2017 media report that SCANA had retained Morgan Stanley to explore strategic alternatives, various commitments by Dominion Energy to SCANAs community including a commitment to maintain SCE&Gs headquarters in South Carolina, immediate cash refunds to customers totaling approximately $1.3 billion, which Dominion Energy estimated would result in an average refund of approximately $1,000 for residential customers, a 3.5% bill reduction related to the NND project going forward, a substantial write down of the investment in the NND project and exclusion from rate base of a gas-fired generation facility being acquired to help replace the NND project. The updated proposal also included certain requirements of Dominion Energy in order to proceed with the transaction, including that the key terms related to the rate settlement would receive SCPSC approval with no material changes in the terms of the rate settlement proposal and no change to the economic value of the rate settlement proposal and that, prior to the closing of the merger, there would be no changes in laws that impact SCANA, the BLRA or other utility laws.
An in-person meeting of the SCANA board was held on December 18, 2017. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley, RBC Capital Markets and McNair attended this meeting. Also attending a portion of the meeting were representatives from SCANAs various regulatory counsel in connection with the proposed transaction. After some introductory matters, the meeting commenced with regulatory counsel providing the SCANA board with an overview of the various regulatory clearances that would be needed in connection with the proposed transaction, including the likely timing for seeking and obtaining such clearances and the possibility of issues arising in obtaining such clearances. After regulatory counsel was excused from the meeting, representatives of Mayer Brown discussed with the SCANA board, as it had done in prior board meetings, information that the directors had provided regarding past or current business or personal relationships with Dominion Energy or individuals associated with Dominion Energy. After considering such relationships and in consultation with Mayer Brown, the SCANA board reaffirmed its prior determination that each director was independent and disinterested in connection with a potential strategic transaction with Dominion Energy. Mayer Brown also discussed with the SCANA board, as it had done in prior board meetings, the disclosures made by Morgan Stanley and RBC Capital Markets, which had been updated by Morgan Stanley and RBC Capital Markets prior to the meeting, with respect to their respective material relationships with Dominion Energy. After considering such relationships and in consultation with Mayer Brown, the SCANA board reaffirmed its prior determination that none of such relationships of SCANAs financial
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advisors were sufficiently material to adversely affect the ability of Morgan Stanley or RBC Capital Markets to act as financial advisors to SCANA in connection with a potential strategic transaction with Dominion Energy.
Next, Ms. Griffin made a presentation of SCANAs financial projections, which had been prepared by SCANAs management, using various rate and regulatory settlement scenarios. Such scenarios took into account the potential consequences of federal tax reform given the additional certainty with respect to such reform at that time. Then, each of Morgan Stanley and RBC Capital Markets discussed certain preliminary financial information relating to SCANA and the proposed transaction. Next, representatives of Mayer Brown, Morgan Stanley and RBC Capital Markets provided an update on the reverse due diligence that had been conducted on Dominion Energy and representatives of Mayer Brown summarized for the SCANA board certain key open issues in the merger agreement. The meeting concluded with Mr. Stuckey explaining to the SCANA board the terms of the change of control plans covering SCANA officers in the event a transaction was consummated.
On December 19, 2017, Mr. Addison had a meeting with an executive of Party C that had been arranged at the request of that executive. At that meeting, the executive indicated that Party C had a long-term interest in acquiring SCANA. The executive did not however propose any concepts or terms that would apply to a transaction between SCANA and Party C or any process that would apply to consideration of such a transaction. The executive also indicated that Party C would be interested in acquiring Public Service Company of North Carolina, a subsidiary of SCANA, for $2.2 billion. Mr. Addison informed the executive that he would present these matters to the SCANA board and would respond to the executive if and as directed by the SCANA board.
A telephonic meeting of the SCANA board was held on December 19, 2017. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley, RBC Capital Markets and McNair attended this meeting. At this meeting, Mr. Addison reported on his recent meeting with an executive of Party C. Mr. Addison explained that, in his view, Party Cs proposal to acquire SCANAs subsidiary, Public Service Company of North Carolina, was not particularly attractive given the valuation proposed by Party C and the fact that Public Service Company of North Carolina was a key driver of SCANAs growth. The SCANA board concurred with this assessment. SCANAs management and advisors then discussed with the SCANA board certain significant open issues with respect to the merger agreement with Dominion Energy, including the triggers for and amount of the reverse termination fee payable by Dominion Energy, certain deal protection terms, including the amount of the termination fee payable by SCANA, closing conditions relating to South Carolina regulatory approvals and changes that cannot be considered in determining whether a material adverse effect on SCANA has occurred. After discussion, the SCANA board provided SCANAs management and advisors with guidance on these issues.
Later on December 19, 2017, SCANA, through its financial advisors, had a discussion with Dominion Energy regarding various potential methods to determine a mutually acceptable reference stock price for each party for calculating the fixed exchange ratio, as well as with respect to other open issues. SCANAs proposed method for calculating the exchange ratio reflected a value of $57 per share of SCANA common stock.
On December 21, 2017, SCANAs stock price declined approximately 9.5%. On the following day, SCANAs stock price rose approximately 4.3%.
On December 22, 2017, McGuireWoods circulated a revised draft of the merger agreement on behalf of Dominion Energy. Among other changes, the revised draft reflected a closing condition that provided Dominion Energy the right not to close the transaction if after the signing of the merger agreement there were any changes to the BLRA or other South Carolina public utility laws and a termination fee amount of 3.5% of the equity value of the transaction for each of the termination fee payable by SCANA in certain instances and the termination fee payable by Dominion Energy in certain instances.
On December 27, 2017, Dominion Energy revised its proposal to, among other changes, increase the initial bill reduction to customers to at least 5% from the prior proposal of 3.5%. This increased benefit to customers
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was attributed to Dominion Energy passing through to customers the benefits associated with the recently enacted reduction in federal income tax rates (estimated at the time to be at least 1.5%). Also on December 27, 2017, Dominion Energy proposed establishing the proposed transaction value through a fixed exchange ratio of 0.6620 of a share of Dominion Energy common stock for each outstanding share of SCANA common stock.
A telephonic meeting of the SCANA board was held on December 29, 2017. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley, RBC Capital Markets, McNair and a representative of Womble Bond Dickinson, LLP, SCANAs South Carolina regulatory counsel which we refer to as Womble Bond, attended this meeting. At this meeting, each of Morgan Stanley and RBC Capital Markets discussed with the SCANA board certain preliminary financial matters related to SCANA and the proposed transaction, including an update with respect to the negotiations on the exchange ratio. Following such discussion, Mr. Stuckey and representatives of Mayer Brown summarized the remaining significant open issues in the merger agreement and the representatives of Mayer Brown summarized the material terms of the merger agreement for the SCANA board. Among other material terms, Mayer Brown summarized the terms of the merger agreement relating to employee benefits and executive compensation, including treatment of equity and equity-based awards, post closing covenants relating to treatment of employees and employee benefits, including protection of severance benefits and the period of post-closing protection, and the proposed exceptions to the interim operating covenants, including salary increases, ordinary course equity grants, and retention bonuses. The representative of Womble Bond then summarized the material terms of the merger agreement relating to South Carolina regulatory matters and the rate settlement proposal.
Later on December 29, 2017, SCANA, through its financial advisors, conveyed a counterproposal to Dominion Energy with respect to the transaction consideration of an exchange ratio of 0.6690 of a share of Dominion Energy common stock for each outstanding share of SCANA common stock.
On December 30, 2017, Dominion Energy agreed to SCANAs counterproposal on the proposed exchange ratio of 0.6690 of a share of Dominion Energy common stock for each outstanding share of SCANA common stock. On December 31, 2017, the parties also reached agreement on certain of the other significant open issues, including that the merger agreement would include a closing condition that provided Dominion Energy the right not to close the transaction if after the signing of the merger agreement there were any substantive changes to the BLRA or other South Carolina public utility laws that would have an adverse effect on SCANA and a termination fee in the amount of 3.0% of the offered equity value of the transaction for the termination fee payable by SCANA in certain instances and a termination fee in the amount of 3.5% of the offered equity value of the transaction for the termination fee payable by Dominion Energy in certain instances. Counsel for the parties then completed final documentation reflecting these agreements.
A telephonic meeting of the SCANA board was held on January 2, 2018. Members of SCANAs senior management and representatives of Mayer Brown, Morgan Stanley, RBC Capital Markets and McNair attended this meeting. At this meeting, SCANAs management and financial advisors provided the directors with an update of the final negotiations with respect to the exchange ratio and representatives of Mayer Brown summarized the resolution of the remaining significant open issues in the merger agreement. Then, Morgan Stanley and RBC Capital Markets separately provided the SCANA board with their respective financial analyses performed in connection with the proposed transaction. Next, Mr. Addison, Ms. Griffin, Mr. Stuckey and other members of SCANA management shared with the SCANA board their views on the merits of the proposed transaction with Dominion Energy and the alternatives to the transaction. Each member of management present at the meeting stated that, in his or her view, the proposed transaction with Dominion Energy was the best alternative available to SCANA under its present circumstances. The SCANA board then engaged in further discussions and deliberations, with the assistance of SCANAs management and advisors, with respect to the proposed transaction with Dominion Energy.
Next, at the request of the SCANA board, Morgan Stanley rendered its oral opinion to the SCANA board (which was subsequently confirmed in writing by delivery of Morgan Stanleys written opinion to the SCANA
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board dated the same date) to the effect that, as of January 2, 2018, and based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in Morgan Stanleys written opinion, the merger consideration (as such term is defined in the merger agreement) to be received by holders of SCANA common stock (other than certain excluded holders) pursuant to the merger agreement was fair from a financial point of view to such holders. Also at this meeting and at the request of the SCANA board, RBC Capital Markets rendered its oral opinion, confirmed by delivery of a written opinion dated January 2, 2018, to the SCANA board to the effect that, as of that date and based on and subject to the procedures followed, assumptions made, factors considered and qualifications and limitations described in the opinion, the merger consideration to be received by holders of SCANA common stock pursuant to the merger agreement was fair, from a financial point of view, to such holders. The full texts of the opinions of Morgan Stanley and RBC Capital Markets are attached as Annex B and Annex C, respectively, to this proxy statement/prospectus and set forth, among other things, the procedures followed, assumptions made, factors considered and qualifications and limitations on the review undertaken in connection with their respective opinions, as more fully described in the section entitled Opinions of SCANAs Financial Advisors.
The SCANA board then unanimously (a) determined that it is in the best interests of SCANA and the shareholders of SCANA that SCANA enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement on the terms and subject to the conditions set forth in the merger agreement, (b) adopted the merger agreement and approved the transactions contemplated by the merger agreement, including the merger, (c) directed that the approval of the merger agreement be submitted to a vote at a meeting of the shareholders of SCANA and (d) resolved to recommend that the shareholders of SCANA approve the merger agreement.
In the early evening of January 2, 2018, the parties executed the merger agreement.
In the early morning of January 3, 2018, SCANA and Dominion Energy issued a joint press release announcing the transaction.
SCANAs Reasons for the Merger; Recommendation of the SCANA Board
SCANAs Reasons for the Merger
At a meeting held on January 2, 2018, the SCANA board unanimously (i) determined that it is in the best interests of SCANA and the SCANA shareholders that SCANA enter into the merger agreement and complete the merger and the other transactions contemplated by the merger agreement on the terms and subject to the conditions set forth in the merger agreement, (ii) adopted the merger agreement and approved the transactions contemplated by the merger agreement, including the merger, (iii) directed that the approval of the merger agreement be submitted to a vote at a meeting of the SCANA shareholders, and (iv) resolved to recommend that the SCANA shareholders approve the merger agreement. In evaluating the merger, the SCANA board consulted with SCANAs management and legal and financial advisors and, in reaching its unanimous decision to adopt the merger agreement and to recommend that the SCANA shareholders approve the merger agreement, considered numerous factors which are discussed below.
Among the information and material factors considered by the SCANA board were the following (not in any relative order of importance):
| The understanding of SCANAs management and the SCANA board of SCANAs business, operations, financial condition, financing needs, earnings, strategy and prospects, as well as SCANAs historical and projected financial performance; |
| The SCANA boards consideration of the current state of the economy, debt and equity financing markets, and uncertainty regarding near-term and long-term forecasted economic conditions, both generally and within SCANAs industry in particular; |
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| The fact that, since the bankruptcy filing of Westinghouse Electric Company, LLC, which we refer to as Westinghouse, and SCANAs decision to abandon the NND project, SCANA has been under increasingly intense regulatory, political and legal scrutiny which has resulted in, and could result in further, significant financial uncertainty for SCANA and could lead to significant negative financial impacts on SCANA, including possible bankruptcy; |
| The fact that the exchange ratio of 0.6690 of a share of Dominion Energy common stock for each outstanding share of SCANA common stock provided for in the merger represents: |
| an implied price of approximately $54.23 per share of SCANA common stock based on the closing price of Dominion Energy common stock on December 29, 2017, the last trading day prior to the date on which the SCANA board adopted the merger agreement, which reflects an implied premium of approximately 36.3% based on the closing price of SCANA common stock on December 29, 2017; and |
| an implied price of approximately $55.39 based on the 30-day Bloomberg intraday volume weighted average price of Dominion Energy common stock as of December 29, 2017, the last trading day prior to the date on which the SCANA board adopted the merger agreement, which reflects an implied premium of approximately 29.7% based on the 30-day Bloomberg intraday volume weighted average price of SCANA common stock as of December 29, 2017; |
| The fact that SCE&G publicly proposed on November 16, 2017 a $4.8 billion comprehensive solution to outstanding rate and regulatory issues relating to the abandoned NND project and that, based on the reaction from legislators and other stakeholders to the proposal, it quickly became clear that the proposal, in the view of SCANAs management and the SCANA board, was not an acceptable solution to these issues; |
| The fact that Dominion Energy committed to propose to the SCPSC, among other things, a one-time rate credit to SCE&Gs electric customers equal to an aggregate of $1.3 billion, at least a 5% bill reduction from 2017 bills to SCE&Gs electric customers, an approximately $1.7 billion write-off of capital and regulatory assets relating to the NND project (including a 20-year amortization period for costs associated with the NND project) and the completion of the $180 million purchase of a natural gas fired power station (the cost of which would not be included in setting rates for SCE&Gs electric customers), which in the aggregate represents a significant improvement over the plan SCE&G publicly proposed on November 16, 2017 and, in the view of SCANAs management and the SCANA board, represents a comprehensive solution to outstanding rate and regulatory issues relating to the abandoned NND project that provides SCE&Gs electric customers greater overall value than what SCANA could offer on a standalone basis; |
| The fact that, upon completion of the merger, SCANA would become part of a much larger company with a considerably stronger balance sheet and access to greater financial resources, which should lower SCANAs cost of capital (taking into account the regulatory and political uncertainty SCANA was facing at the time the SCANA board adopted the merger agreement) and allow SCE&G the ability and resources to address and resolve the issues arising from or relating to Westinghouses bankruptcy and the abandonment of the NND project; |
| The historical trading ranges of SCANAs common stock and the potential trading range of SCANAs common stock absent announcement of the merger agreement and in light of the ongoing regulatory, political and legal scrutiny SCANA is facing; |
| The fact that SCANA had conducted preliminary discussions with parties other than Dominion Energy with respect to a potential strategic transaction, none of which resulted in a proposal that set forth proposed transaction consideration or other developed terms, and the SCANA boards conclusion, based on these preliminary discussions, industry dynamics, advice and market insights received from Morgan Stanley, input and market insights of RBC Capital Markets and regulatory and other challenges for SCANA, among other factors, that the merger provided the most likely path for enhanced value for SCANA shareholders; |
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| The recommendation of SCANAs senior management that SCANA should proceed with the proposed transaction based on its knowledge of SCANAs industry and the regulatory, political, legal and financial challenges facing SCANA in connection with the abandonment of the NND project; |
| The results of SCANAs due diligence investigation of Dominion Energy conducted with the assistance of SCANAs management and certain of SCANAs outside advisors; |
| The fact that, following the merger, SCANAs shareholders would hold stock in a combined company that will have increased scale and scope, including increased financial scale, greater diversification of markets and more regulatory jurisdictions than SCANA on a standalone basis, thereby diversifying certain risks currently associated with SCANA common stock; |
| The financial analyses performed by Morgan Stanley with respect to the proposed transaction, and the opinion of Morgan Stanley, dated January 2, 2018, the full text of which is attached as Annex B, that, based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by it, as set forth in Morgan Stanleys written opinion and as described in Opinions of SCANAs Financial AdvisorsOpinion of Morgan Stanley & Co. LLC beginning on page 47 of this proxy statement/prospectus, the merger consideration to be received by holders of SCANA common stock (other than holders of the cancelled shares) pursuant to the merger agreement was fair from a financial point of view to such holders; |
| The financial presentation and opinion, dated January 2, 2018, of RBC Capital Markets to the SCANA board as to the fairness, from a financial point of view and as of such date, of the merger consideration to be received by holders of SCANA common stock pursuant to the merger agreement, the full text of which opinion is attached as Annex C to this proxy statement/prospectus and sets forth, among other things, the procedures followed, assumptions made, factors considered and qualifications and limitations on the review undertaken by RBC Capital Markets in connection with its opinion, as more fully described in the section entitled Opinions of SCANAs Financial AdvisorsOpinion of RBC Capital Markets, LLC beginning on page 58 of this proxy statement/prospectus; |
| The terms and conditions of the merger agreement, including, among other things, the representations, warranties, covenants and agreements of the parties, the form and structure of the merger consideration and the termination rights of the parties; |
| The fact that, while the merger agreement contains a covenant prohibiting SCANA from soliciting third-party acquisition proposals, the merger agreement permits SCANA, prior to the time that SCANAs shareholders approve the merger agreement, to discuss and negotiate, under specified circumstances, an unsolicited acquisition proposal should one be made and, if the SCANA board determines in good faith, after consultation with SCANAs financial advisors and outside legal counsel, that the unsolicited acquisition proposal constitutes a superior proposal within the meaning of the merger agreement and, after consultation with SCANAs outside legal counsel, that the failure to take any of the following actions would reasonably be expected to be inconsistent with the SCANA boards fiduciary duties under applicable law, the SCANA board is permitted, after taking certain steps, to change or withdraw its recommendation of the merger agreement in response to a superior proposal or terminate the merger agreement in order to enter into a definitive agreement for that superior proposal, subject to payment of a termination payment of $240,000,000 to Dominion Energy; |
| The fact that the merger agreement allows the SCANA board, prior to the time that SCANA shareholders approve the merger agreement, to change or withdraw its recommendation of the merger agreement in response to a material event, development or change in circumstances that first becomes known to the SCANA board or certain officers of SCANA after the date of the merger agreement and which was not reasonably foreseeable as of or prior to the date of the merger agreement or which would not reasonably be expected to have become known after reasonable investigation or inquiry as of or prior to the date of the merger agreement, subject, in all cases, to specified exceptions, if the SCANA board determines in good faith, after consultation with SCANAs outside legal counsel, that |
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the failure to change or withdraw its recommendation would be inconsistent with the SCANA boards fiduciary duties under applicable law; |
| The fact that, in the event that the merger agreement is terminated and a regulatory approval or clearance (other than the approval or clearance of the SCPSC) is not obtained under certain circumstances specified in the merger agreement or is terminated by SCANA for a material breach by Dominion Energy of its covenants to obtain regulatory approvals or clearances with respect to the proposed transaction and that breach caused a failure of any of the closing conditions relating to regulatory matters, SCANA will be entitled to receive a termination fee of $280,000,000 from Dominion Energy; |
| The likelihood that the merger will be completed based on, among other things (not in any relative order of importance): |
| the business reputation and capabilities of Dominion Energy, and the SCANA boards assessment that Dominion Energy is willing to devote the resources necessary to close the merger in an expeditious manner; |
| the termination date under the merger agreement, after which SCANA or Dominion Energy, subject to specified exceptions, may terminate the merger agreement, allowing for sufficient time to close the merger; |
| SCANAs ability to seek specific performance to prevent breaches of the merger agreement by the Dominion Energy parties and to enforce specifically the terms of the merger agreement; and |
| the exclusions from what would contribute to or constitute a material adverse effect on SCANA under the terms of the merger agreement; |
| The fact that the merger is intended to qualify as a reorganization within the meaning of Section 368(a) of the Code, with the result that a U.S. holder of SCANA common stock generally would not recognize any gain or loss upon receipt of Dominion Energy common stock solely in exchange for SCANA common stock in the merger, except with respect to cash received in lieu of fractional shares of Dominion Energy common stock; |
| The provisions of the merger agreement that require, as soon as practicable after the effective time of the merger, the appointment of a current member of the SCANA board or SCANAs executive management to the Dominion Energy board; |
| The fact that the merger agreement is subject to approval by holders of at least two-thirds of the outstanding shares of SCANA common stock; |
| The SCANA boards belief regarding the likelihood of obtaining the regulatory approvals, findings and clearances necessary to complete the merger; and |
| The fact that the merger agreement reflects Dominion Energys agreement to make a good faith commitment to give SCANAs employees due and fair consideration for other employment and promotion opportunities within the combined company to the extent any employment positions are re-aligned, reduced or eliminated in the future as a result of the merger; to maintain SCE&Gs corporate headquarters in Cayce, South Carolina; to increase, for at least five (5) years following the merger, SCANAs historical levels of charitable contributions to certain charities to be specified by SCANAs leadership and to maintain or increase historical levels of community involvement, low income funding and economic efforts in SCANAs current operating area. |
The SCANA board also considered a variety of potentially negative factors in its deliberations concerning the merger agreement and the merger, including the following (not in any relative order of importance):
| The fact that, because the merger consideration is a fixed exchange ratio of shares of Dominion Energy common stock for shares of SCANA common stock, SCANA shareholders could be adversely affected |
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by a decrease in the trading price of Dominion Energy common stock and the fact that the merger agreement does not provide for any adjustment of the merger consideration if the trading price of Dominion Energy common stock decreases and does not provide a price-based termination right or other similar protection in favor of SCANA or SCANA shareholders; |
| The risk that the merger will be delayed or will not be completed, including the risk that the required regulatory approvals and clearances may not be obtained or other conditions to closing in the merger agreement may not be satisfied, as well as the potential loss of value to SCANA shareholders and the potential negative impact on the financial position, operations and prospects of SCANA if the merger is delayed or is not completed for any reason; |
| The fact that Dominion Energy will not be obligated to complete the merger if (i) any South Carolina public utility law including the BLRA (as in effect as of the date of the merger agreement) is substantively changed in a manner that has or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries, (ii) the SCPSC fails to make a SCPSC merger determination, or (iii) unless otherwise consented to by Dominion Energy in its sole discretion, the SCPSC fails to approve the SCPSC petition without any material changes to the proposed terms, conditions or undertakings of the cost recovery plan and without a significant change to the economic value of the proposed terms set forth in the cost recovery plan, in each case as reasonably determined by Dominion Energy in good faith; |
| The fact that SCANA did not conduct a formal sale process to solicit other developed acquisition proposals from parties other than Dominion Energy; |
| The fact that, since Westinghouses bankruptcy filing and SCANAs decision to abandon the NND project, SCANAs stock has been trading significantly below historical levels in the recent past, resulting in an implied premium in the merger based on a relatively low stock price; |
| The fact that, by virtue of the merger, SCANA has foregone the opportunity to resolve the issues arising from or relating to Westinghouses bankruptcy and the abandonment of the NND project on its own which, if successful, might have resulted in the price of SCANA common stock increasing to a level in excess of the merger consideration; |
| The significant costs involved in connection with negotiating the merger agreement, the pursuit of regulatory approvals and otherwise completing the merger, the substantial management time and effort required to effectuate the merger and the potential disruptions to SCANAs day-to-day operations during the pendency of the merger; |
| The risk, during the pendency of the merger, that SCANAs relationship with regulators, customers, employees, suppliers, agents and others with which SCANA and its subsidiaries have business dealings could be adversely affected as a result of, among other things, the restrictions in the merger agreement on the conduct of SCANAs business prior to the completion of the merger, which could delay or prevent SCANA from undertaking business opportunities that may arise or other action it would otherwise take with respect to the operations of SCANAs business; |
| The fact that SCANAs executive officers and directors may have interests in the merger that are different from, or in addition to, the interests of SCANA shareholders, including the accelerated vesting of stock-based awards held by executive officers, the payment of cash severance to certain executives of SCANA if a termination of employment were to occur under specified circumstances in connection with the merger, and the interests of SCANAs directors and officers in indemnification by Dominion Energy and insurance coverage from the surviving corporation under the terms of the merger agreement. See the section entitled The Merger AgreementIndemnification and Insurance beginning on page 105 of this proxy statement/prospectus; |
| The fact that the termination payment to be paid to Dominion Energy under the circumstances specified in the merger agreement, which, while as a percentage of the equity value of the transaction is within a |
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customary range for similar transactions, may discourage other parties that might otherwise have an interest in a business combination with, or an acquisition of, SCANA, or may reduce the price offered by those other parties in a competing bid. See the section entitled The Merger AgreementTermination Fees beginning on page 100 of this proxy statement/prospectus; |
| The fact that the right afforded to Dominion Energy under the merger agreement to match acquisition proposals that the SCANA board determines in good faith are superior proposals may discourage other parties that might otherwise have an interest in a business combination with, or an acquisition of, SCANA; and |
| The risks described in the section entitled Risk Factors beginning on page 17 of this proxy statement/prospectus. |
The foregoing discussion of the information and factors considered by the SCANA board is not intended to be exhaustive, but includes the material factors considered by the SCANA board. In view of the variety of factors considered in connection with its evaluation of the merger, the SCANA board did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching its determination and recommendation. In addition, individual directors may have given different weights to different factors. The SCANA board did not undertake to make any specific determination as to whether any factor, or any particular aspect of any factor, supported or did not support its ultimate determination. The SCANA board based its recommendation on the totality of the information presented.
Portions of this explanation of the reasons for the merger and other information presented in this section are forward-looking in nature and, therefore, should be read in light of the section entitled Cautionary Statement Regarding Forward-Looking Statements beginning on page 25 of this proxy statement/prospectus.
Recommendation of the SCANA Board
The SCANA board recommends that you vote FOR the merger proposal.
Opinions of SCANAs Financial Advisors
Opinion of Morgan Stanley & Co. LLC
Morgan Stanley was retained by SCANA to act as its financial advisor in connection with the merger and to provide financial advice and assistance and, upon SCANAs request, to render a financial opinion, in each case in connection therewith. The SCANA board selected Morgan Stanley to act as its financial advisor based on Morgan Stanleys qualifications, expertise and reputation, its knowledge of and involvement in recent transactions in SCANAs industry and its knowledge and understanding of the business and affairs of SCANA. On January 2, 2018, Morgan Stanley rendered its oral opinion, which was subsequently confirmed in writing, to the SCANA board to the effect that, as of that date, and based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in Morgan Stanleys written opinion, the merger consideration to be received by the holders of shares of SCANA common stock (other than the holders of the cancelled shares) pursuant to the merger agreement was fair from a financial point of view to the holders of shares of SCANA common stock.
The full text of the written opinion of Morgan Stanley delivered to the SCANA board, dated January 2, 2018, is attached as Annex B and incorporated into this proxy statement/prospectus by reference in its entirety. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of the review undertaken by Morgan Stanley in rendering its opinion. SCANA shareholders are urged to, and should, read the opinion carefully and in its entirety. Morgan Stanleys opinion is directed to the SCANA board and addresses only the fairness from a financial point of view of the merger consideration to be received by the holders of
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shares of SCANA common stock (other than the holders of the cancelled shares) pursuant to the merger agreement as of the date of the opinion. Morgan Stanleys opinion did not address the relative merits of the transactions contemplated by the merger agreement as compared to other business or financial strategies that might be available to SCANA, nor did it address the underlying business decision of SCANA to enter into the merger agreement or proceed with any other transaction contemplated by the merger agreement. In addition, Morgan Stanleys opinion did not in any manner address the prices at which shares of Dominion Energy common stock will trade following completion of the merger or at any time, and Morgan Stanleys opinion was not intended to, and does not, express any opinion or recommendation as to how the holders of shares of SCANA common stock should vote at the special meeting. The summary of Morgan Stanleys opinion set forth in this proxy statement/prospectus is qualified in its entirety by reference to the full text of Morgan Stanleys opinion.
For purposes of rendering its opinion, Morgan Stanley, among other things:
| reviewed certain publicly available financial statements and other business and financial information of SCANA and Dominion Energy, respectively; |
| reviewed certain internal financial statements and other financial and operating data concerning SCANA and Dominion Energy, respectively; |
| reviewed certain financial projections prepared by the managements of SCANA and Dominion Energy, respectively, which we refer to as the SCANA management projections and Dominion Energy management projections, respectively; |
| discussed the past and current operations and financial condition and the prospects of SCANA with senior executives of SCANA; |
| discussed the past and current operations and financial condition and the prospects of Dominion Energy with senior executives of Dominion Energy; |
| reviewed the pro forma impact of the merger on Dominion Energys earnings per share, cash flow, consolidated capitalization and certain financial ratios; |
| reviewed the reported prices and trading activity for SCANA common stock and Dominion Energy common stock; |
| compared the financial performance of SCANA and the prices and trading activity of SCANA common stock with that of certain other publicly traded companies comparable with SCANA, and their securities; |
| reviewed the financial terms, to the extent publicly available, of certain comparable acquisition transactions; |
| participated in certain discussions and negotiations among representatives of SCANA and Dominion Energy and their financial and legal advisors; |
| reviewed the merger agreement and certain related documents; and |
| performed such other analyses and considered such other factors as Morgan Stanley deemed appropriate. |
In arriving at its opinion, Morgan Stanley assumed and relied upon, without independent verification, the accuracy and completeness of the information that was publicly available or supplied or otherwise made available to Morgan Stanley by SCANA and Dominion Energy, and formed a substantial basis for Morgan Stanleys opinion. With respect to the SCANA management projections and the Dominion Energy management projections, Morgan Stanley assumed that they had been reasonably prepared on bases reflecting the best currently available estimates and judgments of the respective managements of SCANA and Dominion Energy of the future financial performance of SCANA and Dominion Energy. In addition, Morgan Stanley assumed that the
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merger will be completed in accordance with the terms set forth in the merger agreement without any waiver, amendment or delay of any terms or conditions, including, among other things, that the merger will be treated as a tax-free reorganization, pursuant to the Code. Morgan Stanley relied upon, without independent verification, the assessment by the management of SCANA of: (i) the timing and risks associated with the integration of SCANA and Dominion Energy and (ii) their ability to retain key employees of SCANA and Dominion Energy, respectively. Morgan Stanley assumed that in connection with the receipt of all the necessary governmental, regulatory or other approvals and consents required for the merger, no delays, limitations, conditions or restrictions will be imposed that would have a material adverse effect on the contemplated benefits expected to be derived in the merger (but Morgan Stanley assumed, without independent verification, the reasonableness of those delays, limitations, conditions and restrictions contained in the financial projections prepared by the managements of SCANA and Dominion Energy).
Morgan Stanley is not a legal, tax, or regulatory advisor. Morgan Stanley is a financial advisor only and has relied upon, without independent verification, the assessment of SCANA and its legal, tax, and regulatory advisors with respect to legal, tax, and regulatory matters. For purposes of its analysis Morgan Stanley did not make any assessment of the status of outstanding litigation or regulatory proceedings involving SCANA and excluded the effects of any such litigation or proceedings in its analysis, other than those effects included in the financial projections prepared by the managements of SCANA and Dominion Energy, upon which Morgan Stanley relied without independent verification. Morgan Stanley expresses no opinion with respect to the fairness of the amount or nature of the compensation to any of SCANAs officers, directors or employees, or any class of such persons, relative to the merger consideration to be received by the holders of shares of SCANA common stock (other than the holders of the cancelled shares) in the merger. Morgan Stanley did not make any independent valuation or appraisal of the assets or liabilities of SCANA or Dominion Energy, nor was Morgan Stanley furnished with any such valuations or appraisals. Morgan Stanleys opinion is necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to Morgan Stanley as of January 2, 2018. Events occurring after January 2, 2018 may affect Morgan Stanleys opinion and the assumptions used in preparing it, and Morgan Stanley did not assume any obligation to update, revise or reaffirm its opinion.
In arriving at its opinion, Morgan Stanley was not authorized to solicit, and did not solicit, interest from any party with respect to the acquisition, business combination or other extraordinary transaction, involving SCANA. At the direction of the management and the SCANA board, Morgan Stanley did not negotiate with anyone other than Dominion Energy.
Summary of Morgan Stanley Financial Analyses
SCANA Financial Analysis
The following is a brief summary of the material financial analyses performed by Morgan Stanley in connection with the preparation of its opinion. The following summary is not a complete description of Morgan Stanleys opinion or the financial analyses performed and factors considered by Morgan Stanley in connection with its opinion, nor does the order of analyses described represent the relative importance or weight given to those analyses. The financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses used by Morgan Stanley, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses. The analyses listed in the tables and described below must be considered as a whole; considering any portion of such analyses and of the factors, without considering all analyses and factors, could create a misleading or incomplete view of the process underlying Morgan Stanleys opinion. Furthermore, mathematical analysis, such as determining the mean, median or average, is not in itself a meaningful method of using the data referred to below. Except as otherwise noted below, all implied values per share of SCANA common stock included in Morgan Stanleys presentation to the SCANA board, as described in this section, were rounded to the nearest $0.25.
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In performing the financial analyses summarized below and arriving at its opinion, Morgan Stanley used and relied upon the financial forecasts under the 5% regulatory settlement scenario and 9.75% regulatory settlement scenario. For more information, please see the section entitled Certain Forecasts Prepared by SCANAs Management beginning on page 78 of this proxy statement/prospectus. In addition, Morgan Stanley analyzed certain financial projections based on Wall Street research reports, which we refer to as IBES. With respect to the financial forecasts under the 3.5% regulatory settlement scenario, the terms of the 3.5% regulatory settlement scenario had been publicly proposed by SCANA on November 16, 2017 and, based on the reaction from regulators and other constituencies to such proposal, it quickly became clear that the proposal, in the view of SCANAs management and the SCANA board, was not an acceptable solution to the outstanding rate and regulatory issues relating to the abandoned NND project. Accordingly, SCANA directed Morgan Stanley not to use and rely upon the financial forecasts under the 3.5% regulatory settlement scenario for purposes of Morgan Stanleys financial analyses and opinion and SCANA provided such financial forecasts to Morgan Stanley for informational reference purposes only.
Comparable Companies Analysis
Morgan Stanley performed a comparable companies analysis, which attempts to provide an implied value of a company by comparing it to similar companies that are publicly traded. Morgan Stanley reviewed and compared certain financial information, ratios and multiples relating to SCANA to corresponding financial information, ratios and multiples for publicly traded regulated electric and gas and electric-only utility companies that shared characteristics with SCANA to derive an implied valuation range for SCANA.
The companies included in the comparable companies analysis were:
| Duke Energy Corporation |
| The Southern Company |
| American Electric Power Company, Inc. |
| Xcel Energy Inc. |
| WEC Energy Group, Inc. |
| DTE Energy Group, Inc. |
| Ameren Corporation |
| CMS Energy Corporation |
| Pinnacle West Capital Corporation |
The foregoing companies were chosen based on Morgan Stanleys knowledge of the industry and because such companies have businesses that may be considered similar to SCANAs. Although none of such companies are identical or directly comparable to SCANA, these companies are publicly traded companies with operations and/or other criteria, such as lines of business, markets, business risks, growth prospects, maturity of business and size and scale of business, that, for purposes of its analysis, Morgan Stanley considered similar to those of SCANA. The foregoing summary and underlying financial analyses involved complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the values of the companies to which SCANA was compared. In evaluating comparable companies, Morgan Stanley made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions and other matters, which are beyond the control of SCANA, including, among other things, the impact of regulatory changes, industry growth and the absence of any adverse material change in the financial condition and prospects of SCANA or the industry or in the financial markets in general.
In performing this analysis, Morgan Stanley used the financial forecasts under the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario and IBES to compare the financial information and
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multiples of market value of the companies included in the comparable companies analysis to the following metrics of SCANA:
| stock price to 2019 estimated earnings per share, which we refer to as EPS (based on the financial forecasts under the 5% regulatory settlement scenario); |
| stock price to 2019 estimated EPS (based on the financial forecasts under the 9.75% regulatory settlement scenario); and |
| stock price to 2019 estimated EPS (based on IBES). |
Morgan Stanley did not compare SCANAs stock price to its 2018 estimated EPS because of significant write-downs expected to be made by SCANA in 2018 that would cause SCANAs earnings in 2018 to be unrepresentative. In addition, Morgan Stanley applied a discount of 1.5 multiple points to the multiples of stock price to estimated 2019 EPS for the comparable companies referred to above to reflect the long-term average (based on the past 10 years) next-twelve-month multiple discount at which SCANA common stock has traded as compared to the trading prices of the stock of such comparable companies (based on historical trading prices as a multiple of estimated next-twelve-month EPS) and the expected low rate of growth of dividends per share reflected in the SCANA management projections relative to peers. The range of multiples of stock price to estimated EPS for 2019 for the companies included in the comparable companies analysis based on a compilation of earnings estimates by selected equity research analysts (after giving effect to the 1.5 multiple point discount described above) is 14.0x to 18.0x.
Applying this range of multiples, Morgan Stanley derived a range of approximate implied equity values per share of SCANA common stock as follows:
Metric |
Implied Value Per Share of SCANA Common Stock |
|||
Stock price to 2019 estimated EPS (based on the financial forecasts under the 5% regulatory settlement scenario) |
$47.00 - $60.50 | |||
Stock price to 2019 estimated EPS (based on the financial forecasts under the 9.75% regulatory settlement scenario) |
$41.00 - $52.50 | |||
Stock price to 2019 estimated EPS (based on IBES) |
$41.50 - $53.25 |
These implied value ranges were compared to the value of the merger consideration of $54.23 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $81.06, which was the closing price of Dominion Energy common stock as of December 29, 2017) and to the value of the merger consideration of $55.39 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $82.80, which was the 30-day intraday volume weighted average price of Dominion Energy common stock as of December 29, 2017, as reported by Bloomberg).
Discounted Cash Flow Analysis
Morgan Stanley performed a discounted cash flow analysis of SCANA, which is designed to provide an implied value of a company by calculating the present value of the estimated future unlevered cash flows and terminal year value based upon a price-to-earnings multiple applied to net income in the terminal year. Morgan Stanley calculated a range of implied equity values per share for SCANA common stock based on estimates of future cash flows for calendar years 2018 through 2022 and the terminal year (assuming, at the direction of SCANAs management, that, with respect to the financial forecasts under the 5% regulatory settlement scenario, terminal year net income grew at 2.6%, the compound annual growth rate from 2018 through 2022 for SCANAs
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net income in this scenario and, with respect to the financial forecasts under the 9.75% regulatory settlement scenario, terminal year net income grew at 1.0%, the compound annual growth rate from 2018 through 2022 for SCANAs net income in this scenario).
Morgan Stanley used estimates from the financial forecasts under the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario for purposes of the discounted cash flow analysis, as more fully described below. In performing a discounted cash flow analysis of SCANA using estimates from the financial forecasts under the 5% regulatory settlement scenario and 9.75% regulatory settlement scenario, Morgan Stanley first calculated the estimated unlevered free cash flows of SCANA and then calculated a terminal value for SCANA common stock by applying a 13.5x to 15.0x range of price-to-earnings multiples to SCANAs terminal year estimated net income per share. This terminal year price-to-earnings multiple range was derived from the ten-year average (for the ten-year period ending December 29, 2017) of stock price to the estimated next-twelve-month EPS multiples for the companies in the comparable companies analysis, and then applying the 1.5 multiple point discount, as described above with respect to the comparable companies analysis, to reflect the long-term average multiple discount at which SCANAs stock price to EPS traded as compared to the price to earnings multiples of the comparable companies. In view of the expected low rate of growth of dividends per share reflected in the SCANA management projections relative to peers, Morgan Stanley, based on its professional judgment and experience, did not consider it appropriate to assume that SCANAs stock would cease to trade at this 1.5 multiple point discount.
Unlevered free cash flows were calculated by tax-effecting earnings before interest and taxes and adding back the aggregate of depreciation and amortization, deferred taxes and other cash flow adjustments provided by management, including the change in working capital, less the sum of capital expenditures. The free cash flows and range of terminal values were then discounted to present value as of December 31, 2017 using discount rates ranging from 5.2% to 6.1%, which were chosen by Morgan Stanley based upon prevailing interest rates and Morgan Stanleys judgment of the estimated range of SCANAs weighted average cost of capital. This analysis indicated the following implied range of values per share of SCANA common stock:
Metric |
Implied Value Per Share of SCANA Common Stock |
|||
5% regulatory settlement scenario |
$53.50 - $62.25 | |||
9.75% regulatory settlement scenario |
$46.75 - $54.75 |
These implied value ranges were compared to the value of the merger consideration of $54.23 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $81.06, which was the closing price of Dominion Energy common stock as of December 29, 2017) and to the value of the merger consideration of $55.39 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $82.80, which was the 30-day intraday volume weighted average price of Dominion Energy common stock as of December 29, 2017, as reported by Bloomberg).
Future Stock Price Analysis
Using estimates from the financial forecasts under the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario, Morgan Stanley performed an illustrative analysis of SCANAs potential future stock price as compared to the merger consideration. This analysis compared (i) SCANAs potential future stock price for each of the years 2018 and 2019 based on SCANAs standalone projected next-twelve month EPS using an illustrative price-to-EPS multiple range derived from historical trading analyses described below and based on Morgan Stanleys professional judgment and experience to (ii) the value of the merger consideration of $54.23 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA
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common stock and a Dominion Energy common stock per share price of $81.06, which was the closing price of Dominion Energy common stock as of December 29, 2017) and the value of the merger consideration of $55.39 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $82.80, which was the 30-day intraday volume weighted average price of Dominion Energy common stock as of December 29, 2017, as reported by Bloomberg).
The illustrative price to EPS multiple range selected by Morgan Stanley in this analysis was derived from the following metrics based on the closing price of SCANA common stock as of December 29, 2017:
| multiple to 2018 estimated EPS (13.7x), as well as a 1.5 multiple point premium and discount to such multiple (15.2x to 12.2x); |
| average next twelve month multiple of EPS for the past five years (15.1x); and |
| average next twelve month multiple of EPS for the past 10 years (14.0x). |
This analysis indicated that the potential future value per share of SCANA common stock in all of the ranges of potential future values calculated using each of the financial forecasts under the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario described above would be lower than the value of the merger consideration on a per-share basis as of December 29, 2017. Specifically, across the range of multiples analyzed, this analysis indicated the following high and low range of implied values per share of SCANA common stock:
Metric |
Implied Value Per Share of SCANA Common Stock* |
|||||||||||||||
2018 | 2019 | |||||||||||||||
Low | High | Low | High | |||||||||||||
5% regulatory settlement scenario |
$ | 40.86 | $ | 50.93 | $ | 43.01 | $ | 53.61 | ||||||||
9.75% regulatory settlement scenario |
$ | 35.56 | $ | 44.32 | $ | 37.61 | $ | 46.87 |
* | These amounts were not rounded to the nearest $0.25 in the presentation to the SCANA board. |
Morgan Stanley also presented the median potential future value per share of SCANA common stock based on the ranges calculated in the analysis described above and discounted the median potential future values per share of SCANA common stock to present value using an 8.1% discount rate, which is the midpoint of SCANAs cost of equity, selected by Morgan Stanley based on the application of its professional judgment and experience, inclusive of projected dividends per share over the applicable time period discounted to present value using the same discount rate. This analysis indicated the following implied discounted median values per share of SCANA common stock:
Metric |
Implied Value Per Share of SCANA Common Stock* |
|||||||
Discounted Median Value | ||||||||
2018 | 2019 | |||||||
5% regulatory settlement scenario |
$ | 44.72 | $ | 45.68 | ||||
9.75% regulatory settlement scenario |
$ | 39.21 | $ | 40.07 |
* | These amounts were not rounded to the nearest $0.25 in the presentation to the SCANA board. |
Reference Data
In addition to conducting the analyses described above, Morgan Stanley reviewed the following data, which was used for reference purposes only and not as a component of its fairness analysis.
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Reference Discounted Cash Flow Analyses
For reference only and not as a component of its fairness analysis, Morgan Stanley performed additional discounted cash flow analyses of SCANA using the financial forecasts under the 3.5% regulatory settlement scenario and the 5% regulatory settlement scenario but, in each case, without applying the 1.5 multiple point discount mentioned above. Morgan Stanley calculated a range of implied equity values per share for SCANA common stock based on estimates of future cash flows for calendar years 2018 through 2022 and the terminal year (assuming at the direction of SCANAs management, that, with respect to the 3.5 % Rate Reduction Scenario, terminal year net income grew at 3.1%, the compound annual growth rate from 2018 through 2022 for SCANAs net income in this scenario and, with respect to the financial forecasts under the 5% regulatory settlement scenario, terminal year net income grew at 2.6%, the compound annual growth rate from 2018 to 2022 for SCANAs net income in this scenario).
In performing a discounted cash flow analysis of SCANA using estimates from the financial forecasts under the 3.5% regulatory settlement scenario and the 5% regulatory settlement scenario, Morgan Stanley first calculated the estimated unlevered free cash flows of SCANA and then calculated a terminal value for SCANA common stock by applying a 15.0x to 16.5x range of price to earnings multiples to SCANAs terminal year estimated net income. Although, as discussed above, Morgan Stanley, based on its professional judgment and experience, determined that application of the 1.5 multiple point discount was appropriate, it presented a discounted cash flow analysis using the financial forecasts under the 5% regulatory settlement scenario without applying such discount in order to illustrate for the SCANA board the potential impact on the implied range of values presented to the SCANA board if this historic multiple discount were considered not to be applicable in these scenarios. With respect to the discounted cash flow analysis using the financial forecasts under the 3.5% regulatory settlement scenario, Morgan Stanley did not apply the 1.5 multiple point discount because it concluded, based on its professional judgment and experience, that if the results projected by such scenario were achieved (despite the views of SCANAs management and the SCANA board that the 3.5% regulatory settlement scenario was unlikely to be achieved, as noted above), it would be reasonable to expect that SCANA common stock could trade at a multiple more consistent with the trading multiples of comparable companies. The terminal year price-to-earnings multiple range was derived from the ten-year average (for the ten-year period ending December 29, 2017) of stock price to the estimated next-twelve-month EPS multiples for the companies in the comparable companies analysis.
Unlevered free cash flows were calculated by tax-effecting earnings before interest and taxes and adding back the aggregate of depreciation and amortization, deferred taxes and other cash flow adjustments provided by management including the change in working capital less the sum of capital expenditures. The free cash flows and range of terminal values were then discounted to present value as of December 31, 2017 using discount rates ranging from 5.2% to 6.1%, which were chosen by Morgan Stanley based upon prevailing interest rates and Morgan Stanleys judgment of the estimated range of SCANAs weighted average cost of capital. This analysis indicated the following implied range of values per share of SCANA common stock:
Metric |
Implied Value Per Share of SCANA Common Stock |
|||
3.5% regulatory settlement scenario |
$64.50 - $73.75 | |||
5% regulatory settlement scenario |
$58.25 - $67.25 |
These implied value ranges were compared to the value of the merger consideration of $54.23 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $81.06, which was the closing price of Dominion Energy common stock as of December 29, 2017) and to the value of the merger consideration of $55.39 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $82.80, which was the 30-day intraday volume weighted average price of Dominion Energy common stock as of December 29, 2017, as reported by Bloomberg).
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Precedent Transactions Analysis
For reference only and not as a component of its fairness analysis, Morgan Stanley performed a precedent transactions analysis, which is designed to imply a value of a company based on publicly available financial information of selected transactions that share some characteristics with the merger.
Precedent Transaction Premiums. For reference only and not as a component of its fairness analysis, Morgan Stanley reviewed the premiums paid by acquirors in selected transactions in which regulated electric and gas and electric-only utilities were the target between January 1, 2014 and December 29, 2017, which was the last trading day prior to the date Morgan Stanley rendered its opinion, and that Morgan Stanley judged to be similar in certain respects to the merger or aspects thereof based on Morgan Stanleys professional judgment and experience.
For each transaction included in this analysis, Morgan Stanley noted the implied premium to the target share price one day prior to announcement, except where the share price had been affected by pre-announcement events, in which case the unaffected target share price was used. The following is a list of the transactions reviewed:
Date Announced |
Acquiror |
Target | ||
April 30, 2014 |
Exelon Corporation |
Pepco Holdings, Inc. | ||
June 23, 2014 |
Wisconsin Energy Corporation |
Integrys Energy Group, Inc. | ||
October 20, 2014 |
Macquarie (consortium) |
Cleco Corp. | ||
February 26, 2015 |
Iberdrola, S.A. |
UIL Holdings Corporation | ||
September 4, 2015 |
Emera Incorporated |
TECO Energy, Inc. | ||
February 9, 2016 |
Fortis Inc. |
ITC Holdings Corp. | ||
February 9, 2016 |
Algonquin Power & Utilities Corp. |
The Empire District Electric Company | ||
July 10, 2017 |
Great Plains Energy Incorporated |
Westar Energy, Inc. | ||
July 19, 2017 |
Hydro One Ltd. |
Avista Corp. |
Based on the foregoing results and Morgan Stanleys professional judgment and experience, Morgan Stanley applied the range of premiums of 14.7% to 50.1% for the precedent transactions to the closing price of the shares of SCANA common stock of $39.78 as of December 29, 2017 to derive a range of implied equity values per share. The results of the analysis were as indicated in the following table:
Precedent Transactions Premiums Range |
Implied Value | |
14.7% - 50.1% |
$45.75 - $59.75 |
This implied value range was compared to the value of the merger consideration of $54.23 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $81.06, which was the closing price of Dominion Energy common stock as of December 29, 2017) and as compared to the value of the merger consideration of $55.39 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $82.80, which was the 30-day intraday volume weighted average price of Dominion Energy common stock as of December 29, 2017, as reported by Bloomberg).
Precedent Transaction Multiples. For reference only and not as a component of its fairness analysis, Morgan Stanley observed the range of stock prices to estimated one-year-forward EPS multiples for each of the selected precedent transactions as 20.1x to 27.2x. Morgan Stanley applied these multiples to SCANAs estimated 2019
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EPS based on the financial forecasts under the 5% regulatory settlement scenario and 9.75% regulatory settlement scenario. Morgan Stanley then calculated implied equity value per share of SCANA common stock:
Metric |
Stock Price / 2019 Estimated EPS Multiple Range |
Implied Present Value Per Share of SCANA Common Stock |
||||
5% regulatory settlement scenario |
20.1x to 27.2x | $62.50 - $84.50 | ||||
9.75% regulatory settlement scenario |
20.1x to 27.2x | $54.50 - $73.50 |
These implied value ranges were compared to the value of the merger consideration of $54.23 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $81.06, which was the closing price of Dominion Energy common stock as of December 29, 2017) and as compared to the value of the merger consideration of $55.39 (based on the merger consideration of 0.6690 of a share of Dominion Energy common stock per share of SCANA common stock and a Dominion Energy common stock per share price of $82.80, which was the 30-day intraday volume weighted average price of Dominion Energy common stock as of December 29, 2017, as reported by Bloomberg).
No company or transaction utilized in the precedent transactions analysis is identical to SCANA or the merger, respectively. In evaluating the precedent transactions, Morgan Stanley made judgments and assumptions with regard to industry performance, general business, market and financial conditions and other matters, which are beyond SCANAs control, including, among other things, the impact of competition on SCANAs business or the industry generally, regulatory changes, industry growth and the absence of any adverse material change in SCANAs financial condition or the industry or in the financial markets in general, which could affect the aggregate value, equity value and premium paid of the transactions to which they are being compared.
Equity Research Analysts Price Targets. For reference only and not as a component of its fairness analysis, Morgan Stanley reviewed and analyzed the analyst price targets for SCANA common stock, of $38.50 to $60.00 as of December 29, 2017, which was the last trading day prior to the date Morgan Stanley rendered its opinion. Morgan Stanley then discounted the range of analyst price targets for SCANA common stock to present value using a 8.2% discount rate, which is the midpoint of SCANAs cost of equity, selected by Morgan Stanley based on the application of its professional judgment and experience, which produced an implied equity value per share range of SCANA common stock of $35.50 to $55.50. The public market trading price targets published by equity research analysts do not necessarily reflect current market trading prices for SCANA common stock, and these estimates are subject to uncertainties.
Historical Trading Range. For reference only and not as a component of its fairness analysis, Morgan Stanley reviewed the historical trading range of shares of SCANA common stock for the last 6 months and the last 3 months, in each case ending on December 29, 2017, and observed a range of $37.50 to $69.75, for the last 6 months, and a range of $37.50 to $56.25, for the last 3 months.
Dominion Energy Common Stock
Morgan Stanley performed only limited financial analyses related to the value of Dominion Energy common stock, for reference only and not as a component of its fairness analysis. Morgan Stanley observed the trading performance of Dominion Energy common stock for the two-year period ended December 29, 2017 as well as the commentary from selected equity research analysts with respect to Dominion Energy common stock and the observed trading liquidity of Dominion Energy common stock as compared to the number of shares of Dominion Energy common stock to be issued in the merger. As noted above, Morgan Stanley also reviewed, for reference only and not as a component of its fairness analysis, the pro forma impact of the merger on Dominion Energys earnings per share, cash flow, consolidated capitalization and certain financial ratios. After discussion of these factors with the SCANA board, Morgan Stanley was not requested to and did not perform additional financial analyses to assess the value of Dominion Energy common stock.
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General
In connection with the review of the merger by the SCANA board, Morgan Stanley performed a variety of financial and comparative analyses for purposes of rendering its opinion. The preparation of a financial opinion is a complex process and is not necessarily susceptible to a partial analysis or summary description. In arriving at its opinion, Morgan Stanley considered the results of all of its analyses as a whole and did not attribute any particular weight to any analysis or factor it considered. Morgan Stanley believes that selecting any portion of its analyses, without considering all analyses as a whole, would create an incomplete view of the process underlying its analyses and opinion. In addition, Morgan Stanley may have given various analyses and factors more or less weight than other analyses and factors, and may have deemed various assumptions more or less probable than other assumptions. As a result, the ranges of valuations resulting from any particular analysis described above should not be taken to be Morgan Stanleys view of the actual value of SCANA or Dominion Energy.
In performing its analyses, Morgan Stanley made judgments and assumptions with regard to industry performance, general business, regulatory, economic, market and financial conditions and other matters, which are beyond the control of SCANA and Dominion Energy. These include, among other things, industry growth, and the absence of any adverse material change in the financial condition and prospects of SCANA, Dominion Energy and the industry, and in the financial markets in general. Any estimates contained in Morgan Stanleys analyses are not necessarily indicative of future results or actual values, which may be significantly more or less favorable than those suggested by such estimates.
Morgan Stanley conducted the analyses described above solely as part of its analysis of the fairness, from a financial point of view, of the merger consideration pursuant to the merger agreement to the SCANA shareholders (other than the holders of the cancelled shares), and in connection with the delivery of its opinion, dated January 2, 2018, to the SCANA board. Morgan Stanleys opinion did not address any other aspect of the merger or related transactions. The merger consideration pursuant to the merger agreement was determined through arms-length negotiations between SCANA and Dominion Energy and the merger agreement was adopted by the SCANA board. Morgan Stanley acted as financial advisor to the SCANA board during these negotiations but did not, however, recommend any specific exchange ratio for purposes of determining the merger consideration to SCANA or the SCANA board, nor opine that any specific exchange ratio constituted the only appropriate exchange ratio for the merger.
Morgan Stanleys opinion and its presentation to the SCANA board was one of many factors taken into consideration by the SCANA board in deciding to adopt the merger agreement and approve the transactions contemplated thereby and to recommend the approval of the merger agreement by the SCANA shareholders. Consequently, the analyses as described above should not be viewed as determinative of the opinion of the SCANA board with respect to the merger consideration pursuant to the merger agreement or of whether the SCANA board would have been willing to agree to a different merger consideration. Morgan Stanleys opinion was approved by a committee of Morgan Stanley investment banking and other professionals in accordance with its customary practice.
SCANA retained Morgan Stanley based on Morgan Stanleys qualifications, experience and expertise and its familiarity with SCANA. Morgan Stanley is a global financial services firm engaged in the securities, investment management and individual wealth management businesses. Its securities business is engaged in securities underwriting, trading and brokerage activities, foreign exchange, commodities and derivatives trading, and prime brokerage, as well as providing investment banking, financing and financial advisory services. Morgan Stanley, its affiliates, directors and officers may at any time invest on a principal basis or manage funds that invest, hold long or short positions, finance positions, and may trade or otherwise structure and effect transactions, for their own account or the accounts of its customers, in debt or equity securities or loans of SCANA, Dominion Energy or any other company, or any currency or commodity, that may be involved in the merger, or any related derivative instrument.
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Under the terms of its engagement letter dated October 18, 2017, Morgan Stanley provided SCANA financial advisory services and a financial opinion, described in this section and attached to this proxy statement/prospectus as Annex B, in connection with the merger, and SCANA has agreed to pay Morgan Stanley a fee of approximately $27 million for its financial advisory services, $5 million of which was paid upon delivery of Morgan Stanleys opinion, 25% of which is contingent upon SCANA shareholder approval of the merger proposal and the remainder of which is contingent upon closing of the merger. In addition, SCANA may, in its sole discretion, pay Morgan Stanley an incremental incentive fee to be paid upon closing of the merger. SCANA has also agreed to reimburse Morgan Stanley for its reasonable out-of-pocket expenses incurred from time to time in connection with this engagement. In addition, SCANA has agreed to indemnify Morgan Stanley and its affiliates, its and their respective officers, directors, employees and agents and each other person, if any, controlling Morgan Stanley or any of its affiliates, against any losses, claims, damages or liabilities, relating to, arising out of or in connection with Morgan Stanleys engagement and to reimburse certain expenses relating to such indemnity.
In the two (2) years prior to the date of its opinion, Morgan Stanley has provided financial advisory and financing services for SCANA and has received fees in connection with such services in the range of $0 to $1 million. In addition, in the two (2) years prior to the date of its opinion, Morgan Stanley has provided financing services to Dominion Energy and has received fees in connection with such services in the range of $10 million to $11 million. Morgan Stanley may also seek to provide financial advisory and financing services to SCANA, Dominion Energy and their respective affiliates in the future and would expect to receive fees for the rendering of these services.
Opinion of RBC Capital Markets, LLC
SCANA engaged RBC Capital Markets as a financial advisor in connection with the merger. As part of this engagement, the SCANA board requested that RBC Capital Markets evaluate the fairness, from a financial point of view, of the merger consideration to be received by holders of SCANA common stock pursuant to the merger agreement. At a January 2, 2018 meeting of the SCANA board held to evaluate the merger, RBC Capital Markets rendered an oral opinion, confirmed by delivery of a written opinion dated January 2, 2018, to the SCANA board to the effect that, as of that date and based on and subject to the procedures followed, assumptions made, factors considered and qualifications and limitations described in the opinion, the merger consideration to be received by holders of SCANA common stock pursuant to the merger agreement was fair, from a financial point of view, to such holders. The full text of RBC Capital Markets written opinion, dated January 2, 2018, which is attached as Annex C to this proxy statement/prospectus and incorporated in this document by reference, sets forth, among other things, the procedures followed, assumptions made, factors considered and qualifications and limitations on the review undertaken by RBC Capital Markets in connection with its opinion, as more fully described in this section. The following summary of RBC Capital Markets opinion is qualified in its entirety by reference to the full text of the opinion. RBC Capital Markets delivered its opinion to the SCANA board for the benefit, information and assistance of the SCANA board (in its capacity as such) in connection with of its evaluation of the merger. RBC Capital Markets opinion addressed only the fairness, from a financial point of view and as of the date of such opinion, of the merger consideration (to the extent expressly specified in such opinion) and did not address any other aspect of the merger. RBC Capital Markets opinion also did not address the underlying business decision of SCANA to engage in the merger or the relative merits of the merger compared to any alternative business strategy or transaction that might be available to SCANA or in which SCANA might engage. RBC Capital Markets does not express any opinion and does not make any recommendation to any shareholder as to how such shareholder should vote or act with respect to the merger or any proposal to be voted upon in connection with the merger or otherwise.
For purposes of rendering its opinion, RBC Capital Markets undertook such review, inquiries and analyses as it deemed necessary or appropriate under the circumstances and, among other things:
| reviewed the financial terms of a draft, dated January 2, 2018, of the merger agreement; |
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| reviewed certain publicly available financial and other information, and certain historical operating data, relating to SCANA and Dominion Energy made available to RBC Capital Markets from published sources and internal records of SCANA and Dominion Energy, respectively; |
| reviewed certain financial projections and other estimates and data (including as to certain tax attributes) relating to SCANA prepared by the management of SCANA based on alternative regulatory settlement cases, and reviewed certain financial projections and other estimates and data relating to Dominion Energy prepared by the management of Dominion Energy, which projections and other estimates and data RBC Capital Markets was directed by SCANA to utilize for purposes of its analyses and opinion; |
| conducted discussions with members of the senior managements of SCANA and Dominion Energy with respect to the respective businesses, prospects and financial outlook of SCANA and Dominion Energy; |
| reviewed the reported prices and trading activity for shares of SCANA common stock and Dominion Energy common stock; |
| compared certain financial metrics of SCANA and Dominion Energy with those of selected publicly traded companies in lines of businesses that RBC Capital Markets considered generally relevant in evaluating SCANA and Dominion Energy, respectively; |
| reviewed certain potential pro forma financial effects of the merger on Dominion Energy; and |
| considered other information and performed other studies and analyses as RBC Capital Markets deemed appropriate. |
In rendering its opinion, RBC Capital Markets assumed and relied upon the accuracy and completeness of all information that was reviewed by RBC Capital Markets, including all financial, legal, tax, accounting, operating and other information provided to or discussed with RBC Capital Markets by or on behalf of SCANA or Dominion Energy (including, without limitation, financial statements and related notes), and upon the assurances of the respective managements and other representatives of SCANA and Dominion Energy that they were not aware of any relevant information that was omitted or that remained undisclosed to RBC Capital Markets. RBC Capital Markets did not assume responsibility for independently verifying and it did not independently verify such information. RBC Capital Markets also assumed that the financial projections and other estimates and data (including potential tax attributes relating to SCANA) that RBC Capital Markets was directed to utilize in its analyses were reasonably prepared on bases reflecting the best currently available estimates and good faith judgments of the respective managements of SCANA and Dominion Energy, as the case may be, as to the future financial performance of, and were a reasonable basis upon which to evaluate, SCANA under the alternative regulatory settlement cases reflected therein, Dominion Energy, the potential pro forma effects of the merger and the other matters covered thereby. RBC Capital Markets expressed no opinion as to any such financial projections and other estimates and data or the assumptions upon which they were based. RBC Capital Markets relied upon the assessments of the managements of SCANA and Dominion Energy as to, among other things, (i) the potential impact on SCANA and Dominion Energy of market, competitive, seasonal, and other trends and developments in and prospects for, and governmental, regulatory and legislative matters relating to or otherwise affecting, the utility, power and energy industries and the sectors of such industries and geographic regions in which SCANA and Dominion Energy operate (including, without limitation, with respect to future commodity prices and availability, which are subject to significant volatility, existing, planned and/or abandoned infrastructure and other capital projects, including the construction and abandonment of the NND project, and pending and future rate cases, cost recovery and other regulatory proceedings and determinations) and assumptions of the managements of SCANA and Dominion Energy, respectively, as to such matters which, if different than as provided to RBC Capital Markets, could have a meaningful impact on RBC Capital Markets analyses or opinion, (ii) existing and future relationships, agreements and arrangements with, and the ability to attract, retain and/or replace, key employees, customers, suppliers, contractors and subcontractors and other commercial relationships of SCANA and Dominion Energy, and (iii) the ability to integrate the operations of
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SCANA and Dominion Energy. RBC Capital Markets assumed that there would be no developments with respect to any of the foregoing that would have an adverse effect on SCANA, Dominion Energy or the merger or that otherwise would be meaningful in any respect to its analyses or opinion.
In connection with its opinion, RBC Capital Markets did not assume any responsibility to perform, and it did not perform, an independent valuation or appraisal of any of the assets or liabilities (contingent, off-balance sheet, accrued, derivative or otherwise) of or relating to SCANA, Dominion Energy or any other entity and RBC Capital Markets was not furnished with any such valuations or appraisals. RBC Capital Markets expressed no view or opinion as to the potential impact on SCANA, Dominion Energy or any other entity of any pending or potential litigation, claims or governmental, regulatory or other proceedings or investigations. RBC Capital Markets did not assume any obligation to conduct, and it did not conduct, any physical inspection of the properties or facilities of SCANA, Dominion Energy or any other entity. RBC Capital Markets did not evaluate the solvency or fair value of SCANA, Dominion Energy or any other entity under any state, federal or other laws relating to bankruptcy, insolvency or similar matters. RBC Capital Markets assumed that the merger would be completed in accordance with the terms of the merger agreement and in compliance with all applicable laws, documents and other requirements, without waiver, modification or amendment of any material term, condition or agreement, and that, in the course of obtaining the necessary governmental, regulatory or third-party approvals, consents, releases, waivers and agreements for the merger, no delay, limitation, restriction or condition would be imposed or occur, including any divestiture or other requirements, that would have an adverse effect on SCANA, Dominion Energy or the merger or that otherwise would be meaningful in any respect to its analyses or opinion. RBC Capital Markets also assumed that the merger would qualify as a reorganization within the meaning of Section 368(a) of the Code for U.S. federal income tax purposes. In addition, RBC Capital Markets assumed that the final executed merger agreement would not differ, in any respect meaningful to its analyses or opinion, from the draft that RBC Capital Markets reviewed.
RBC Capital Markets opinion spoke only as of the date of the opinion, was based on conditions as they existed and information supplied or reviewed as of the date of the opinion, and was without regard to any market, economic, financial, legal, regulatory or other circumstances or event of any kind or nature which may exist or occur after such date. RBC Capital Markets did not undertake and has no obligation to reaffirm, revise or update its opinion or otherwise comment upon events occurring after the date of its opinion with respect to its opinion. RBC Capital Markets did not express any opinion as to the actual value of Dominion Energy common stock when issued in connection with the merger or the price or range of prices at which SCANA common stock, Dominion Energy common stock or any other securities of SCANA or Dominion Energy may trade or otherwise be transferable at any time, including following announcement or completion of the merger. As the SCANA board was aware, the credit, financial and stock markets, and the industries in which SCANA and Dominion Energy operate, have experienced and continue to experience volatility and RBC Capital Markets expressed no opinion or view as to any potential effects of such volatility on SCANA or Dominion Energy (or their respective businesses) or the merger.
RBC Capital Markets opinion addressed the fairness, from a financial point of view and as of the date of the opinion, of the merger consideration (to the extent expressly specified in the opinion), without regard to individual circumstances of specific holders that may distinguish such holders or the securities of SCANA held by such holders. RBC Capital Markets opinion did not in any way address any other terms, conditions, implications or other aspects of the merger or the merger agreement, including, without limitation, the form or structure of the merger, or any other agreement, arrangement or understanding to be entered into in connection with or contemplated by the merger or otherwise. RBC Capital Markets did not express any opinion or view with respect to, and RBC Capital Markets relied upon the assessments of SCANA and SCANAs representatives regarding, legal, regulatory, tax, accounting and similar matters (including changes resulting from, and the impact of, the recent U.S. tax reform), as to which RBC Capital Markets understood that SCANA obtained such advice as SCANA deemed necessary from qualified professionals. Further, in rendering its opinion, RBC Capital Markets did not express any view on, and its opinion did not address, the fairness of the amount or nature of the compensation (if any) or other consideration to any officers, directors or employees of any party, or class of such
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persons, relative to the merger consideration or otherwise. In connection with its engagement, RBC Capital Markets was not requested to, and it did not, undertake a third-party solicitation process on SCANAs behalf with respect to the acquisition of all or a part of SCANA. The issuance of RBC Capital Markets opinion was approved by RBC Capital Markets fairness opinion committee.
In preparing its opinion to the SCANA board, RBC Capital Markets performed various financial and comparative analyses, including those described below. The summary below of RBC Capital Markets material financial analyses provided to the SCANA board in connection with RBC Capital Markets opinion is not a comprehensive description of all analyses undertaken or factors considered by RBC Capital Markets in connection with its opinion. The preparation of a financial opinion is a complex analytical process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances and, therefore, a financial opinion is not readily susceptible to partial analysis or summary description.
In arriving at its opinion, RBC Capital Markets employed several analytical methodologies and no one method of analysis should be regarded as critical to the overall conclusion reached by RBC Capital Markets. Each analytical technique has inherent strengths and weaknesses, and the nature of the available information may further affect the value of particular techniques. The overall conclusion reached by RBC Capital Markets was based on all analyses and factors presented, taken as a whole, and also on application of RBC Capital Markets experience and judgment. Such conclusion may have involved significant elements of subjective judgment and qualitative analysis and no opinion was given as to the value or merit standing alone of any one or more portions of such analyses or factors.
In performing its analyses, RBC Capital Markets considered industry performance, general business and economic conditions and other matters, many of which are beyond the control of SCANA and Dominion Energy. The estimates of the future performance of SCANA and Dominion Energy in or underlying RBC Capital Markets analyses are not necessarily indicative of actual values or actual future results, which may be significantly more or less favorable than those estimates or those suggested by RBC Capital Markets analyses. The analyses do not purport to be appraisals or to reflect the prices at which a company or business might actually be sold or acquired or the prices at which any securities have traded or may trade at any time in the future. Accordingly, the estimates used in, and the ranges of valuations resulting from, any particular analysis described below are inherently subject to substantial uncertainty and should not be taken as RBC Capital Markets view of the actual value of SCANA or Dominion Energy.
The merger consideration was determined through negotiations between SCANA and Dominion Energy and the decision of SCANA to enter into the merger agreement was solely that of the SCANA board. RBC Capital Markets opinion and analyses were only one of many factors considered by the SCANA board in its evaluation of the merger and should not be viewed as determinative of the views of the SCANA board, SCANAs management or any other party with respect to the merger or the merger consideration to be received by holders of SCANA common stock pursuant to the merger agreement.
Financial Analyses
The summary of the financial analyses described below under this heading Financial Analyses is a summary of the material financial analyses provided by RBC Capital Markets to the SCANA board in connection with RBC Capital Markets opinion, dated January 2, 2018. The financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses performed by RBC Capital Markets, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses. Selecting portions of RBC Capital Markets financial analyses or factors considered or focusing on the data set forth in the tables below without considering all analyses or factors or the full narrative description of such analyses or factors, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view
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of RBC Capital Markets financial analyses. In RBC Capital Markets opinion, the term merger consideration is defined as the implied per share value payable in the merger utilizing the 0.6690 exchange ratio and, for purposes of RBC Capital Markets financial analyses described below performed in connection with such opinion, the implied value was $54.23 per share based on the 0.6690 exchange ratio and the closing price of Dominion Energy common stock on December 29, 2017 (the last trading day prior to the date of RBC Capital Markets opinion to the SCANA board), which implied per share amount is referred to below as the implied per share merger consideration. Financial data utilized for SCANA in the financial analyses described below, to the extent based on internal financial forecasts and estimates of SCANAs management, were based on two potential alternative regulatory settlement cases, referred to individually as the 5% regulatory settlement case and the 9.75% regulatory settlement case, respectively, and collectively as the SCANA forecasts, that SCANA directed RBC Capital Markets to use and rely upon for purposes of its analyses and opinion. Financial data utilized for Dominion Energy in the financial analyses described below, to the extent based on internal financial forecasts and estimates of management, were based on financial forecasts and other information and data relating to Dominion Energy provided to or discussed with RBC Capital Markets by the management of Dominion Energy, which we refer to as the Dominion Energy forecasts.
SCANA Financial Analyses
Selected Public Companies Analysis. RBC Capital Markets performed a selected public companies analysis in which RBC Capital Markets reviewed certain financial and stock market information of SCANA and the following nine selected companies that RBC Capital Markets considered generally relevant as publicly traded companies with predominantly regulated integrated utility operations and over $5 billion in market capitalization, which we collectively refer to as the SCANA selected companies:
| Alliant Energy Corporation |
| Ameren Corporation |
| American Electric Power Company, Inc. |
| CMS Energy Corporation |
| Duke Energy Corporation |
| Pinnacle West Capital Corporation |
| The Southern Company |
| WEC Energy Group, Inc. |
| Xcel Energy Inc. |
In its selected public companies analysis of SCANA, RBC Capital Markets reviewed, among other things, closing stock prices on December 29, 2017 as a multiple of calendar year 2019 estimated earnings per share, which we refer to as EPS. Financial data of the SCANA selected companies was based on publicly available research analysts estimates and other publicly available information. Financial data of SCANA was based on publicly available research analysts estimates, other publicly available information and the SCANA forecasts.
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The overall low to high calendar year 2019 estimated EPS multiples observed for the SCANA selected companies were 15.4x to 19.2x (with a mean of 18.0x and a median of 18.5x). RBC Capital Markets also observed that the calendar year 2019 estimated EPS multiple for SCANA was 13.3x (based on publicly available research analysts estimates). RBC Capital Markets then applied a selected range of calendar year 2019 estimated EPS multiples of 13.3x to 18.5x to corresponding data of SCANA based on the SCANA forecasts. This analysis indicated the following approximate implied per share equity value reference ranges for SCANA, as compared to the implied per share merger consideration:
Approximate Implied Per Share Equity Value Reference Ranges Based on: |
Implied Per Share Merger Consideration | |||
5% Regulatory Settlement Case |
9.75% Regulatory Settlement Case |
|||
$44.55 $62.17 |
$38.77 $54.11 | $54.23 |
No company used in these analyses is identical to SCANA. Accordingly, an evaluation of the results of these analyses is not entirely mathematical. Rather, these analyses involve complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the public trading or other values of the companies to which SCANA was compared.
Discounted Cash Flow Analysis. RBC Capital Markets performed a discounted a cash flow analysis of SCANA by calculating the estimated present values of the standalone unlevered, after-tax free cash flows that SCANA was forecasted to generate during the fiscal years ending December 31, 2018 through December 31, 2021 based on the SCANA forecasts. RBC Capital Markets calculated terminal values for SCANA at the end of 2021 by applying to the terminal year 2022 estimated net income of SCANA a selected range of one-year forward EPS multiples of 14.2x to 16.9x. The unlevered, after-tax free cash flows and terminal values were then discounted to present value (as of December 31, 2017) using a selected discount rate range of 5.10% to 6.10%. This analysis indicated the following approximate implied per share equity value reference ranges for SCANA, as compared to the implied per share merger consideration:
Approximate Implied Per Share Equity Value Reference Ranges Based on: |
Implied Per Share Merger Consideration | |||
5% Regulatory Settlement Case |
9.75% Regulatory Settlement Case |
|||
$52.59 $65.51 |
$47.24 $58.89 | $54.23 |
Dominion Energy Financial Analysis
Selected Public Companies Analysis. RBC Capital Markets performed a selected public companies analysis in which RBC Capital Markets reviewed certain financial and stock market information of Dominion Energy and the following five selected companies that RBC Capital Markets considered generally relevant as publicly traded diversified, integrated utilities with over $10 billion in market capitalization, which we collectively refer to as the Dominion Energy selected companies:
| Avangrid, Inc. |
| CenterPoint Energy, Inc. |
| DTE Energy Company |
| NextEra Energy, Inc. |
| Sempra Energy |
In its selected public companies analysis of Dominion Energy, RBC Capital Markets reviewed, among other things, closing stock prices on December 29, 2017 as a multiple of calendar years 2018 and 2019 estimated EPS. Financial data of the Dominion Energy selected companies was based on publicly available research analysts estimates and other publicly available information. Financial data of Dominion Energy was based on publicly available information and the Dominion Energy forecasts.
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The overall low to high calendar year 2018 estimated EPS and calendar year 2019 estimated EPS multiples observed for the Dominion Energy selected companies were 19.3x to 21.5x (with a mean of 20.2x and a median of 19.8x) and 16.1x to 20.1x (with a mean of 18.5x and a median of 18.7x), respectively. RBC Capital Markets also observed that the calendar year 2018 estimated EPS and calendar year 2019 estimated EPS multiples for Dominion Energy were 20.1x and 19.0x, respectively (based on publicly available research analysts estimates). RBC Capital Markets then applied selected ranges of calendar year 2018 estimated EPS and calendar year 2019 estimated EPS multiples of 19.3x to 21.5x and 16.1x to 20.1x, respectively, to corresponding data of Dominion Energy based on the Dominion Energy forecasts. This analysis indicated the following approximate implied per share equity value reference ranges for Dominion Energy, as compared to the per share closing price of Dominion Energy common stock on December 29, 2017:
Approximate Implied Per Share Equity Value Reference Ranges Based on: |
Dominion Energy Per Share Closing | |||
CY2018E EPS |
CY2019E EPS |
|||
$80.18 $89.59 |
$68.49 $85.50 | $81.06 |
No company used in these analyses is identical to Dominion Energy. Accordingly, an evaluation of the results of these analyses is not entirely mathematical. Rather, these analyses involve complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the public trading or other values of the companies to which Dominion Energy was compared.
Certain Additional Information
RBC Capital Markets observed certain factors that were not considered part of RBC Capital Markets financial analyses with respect to its opinion but were referenced for informational purposes, including, among other things, the following:
| the historical trading performance of SCANA common stock and Dominion Energy common stock during the 52-week period ended December 29, 2017, which indicated low and high closing prices during such 52-week period of approximately $37.39 and $73.61 per share for SCANA common stock and approximately $71.68 and $84.91 per share for Dominion Energy common stock; |
| publicly available research analysts forward stock price targets for SCANA common stock and Dominion Energy common stock, discounted to present value using discount rate ranges of 6.40% to 7.40% and 5.40% to 6.40%, respectively, which indicated target stock price ranges of approximately $36.01 to $56.13 per share for SCANA common stock and approximately $72.71 to $84.99 per share for Dominion Energy common stock. |
Miscellaneous
SCANA has agreed to pay RBC Capital Markets for its services as a financial advisor an aggregate fee estimated to be approximately $14 million, of which $5 million was payable upon delivery of RBC Capital Markets opinion, 25% is payable upon receipt of approval of the merger by SCANA shareholders and the balance is contingent upon completion of the merger. RBC Capital Markets also may be entitled to an incremental incentive fee (the amount of which has not yet been determined) payable, in SCANAs sole discretion, upon completion of the merger. SCANA also has agreed to reimburse RBC Capital Markets for expenses incurred in connection with RBC Capital Markets services and to indemnify RBC Capital Markets and related persons against certain liabilities arising out of RBC Capital Markets engagement.
As the SCANA board was aware, RBC Capital Markets and certain of its affiliates in the past have provided, currently are providing and in the future may provide investment banking and commercial banking services to SCANA and/or its affiliates unrelated to the merger, for which services RBC Capital Markets and its affiliates have received and expect to receive customary compensation, including, during the two-year period
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prior to the date of RBC Capital Markets opinion, having acted or acting as a lender under certain credit facilities of SCANA. During such two-year period, RBC Capital Markets and such affiliates received aggregate fees for such commercial banking services described above of approximately $0.5 million from SCANA. As the SCANA board also was aware, RBC Capital Markets and certain of its affiliates in the past have provided, currently are providing and in the future may provide investment banking and commercial banking services to Dominion Energy and/or its affiliates, for which services RBC Capital Markets and its affiliates have received or expect to receive customary compensation, including, during the two-year period prior to the date of RBC Capital Markets opinion, having acted or acting as (i) joint lead manager or joint book-running manager for certain debt and equity offerings of Dominion Energy and certain of its affiliates in 2016 and 2017 and (ii) joint lead arranger for, and as a lender under, certain bridge and other credit facilities of Dominion Energy and certain of its affiliates. During such two-year period, RBC Capital Markets and such affiliates received aggregate fees for such investment banking and commercial banking services of approximately $24 million from Dominion Energy and certain of its affiliates.
RBC Capital Markets, as part of its investment banking services, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, corporate restructurings, underwritings, secondary distributions of listed and unlisted securities, private placements and valuations for corporate and other purposes. In the ordinary course of business, RBC Capital Markets and/or certain of its
affiliates may act as a market maker and broker in the publicly traded securities of SCANA, Dominion Energy and/or other entities involved in the merger or their respective affiliates and receive customary compensation in connection therewith, and may also actively trade securities of SCANA, Dominion Energy and/or other entities involved in the merger or their respective affiliates for RBC Capital Markets or its affiliates account or for the account of customers and, accordingly, RBC Capital Markets and its affiliates may hold a long or short position in such securities.
RBC Capital Markets is an internationally recognized investment banking firm which is regularly engaged in providing financial advisory services in connection with mergers and acquisitions. SCANA selected RBC Capital Markets as SCANAs financial advisor in connection with the merger on the basis of RBC Capital Markets experience in similar transactions, reputation in the investment community and familiarity with SCANA and its business.
Directors and Management of Dominion Energy After the Merger
Upon completion of the merger, the board of directors and executive officers of Dominion Energy are expected to remain unchanged. Pursuant to the terms of the merger agreement, as soon as practical after completion of the merger, the Dominion Energy board intends to appoint a mutually agreeable current member of the SCANA board or SCANAs executive management to serve on the Dominion Energy board. For information on Dominion Energys current directors and executive officers, please see Dominion Energys proxy statement dated March 20, 2017. See the section entitled Where You Can Find More Information beginning on page 136 of this proxy statement/prospectus.
U.S. Federal Income Tax Consequences of the Merger
The following is a general discussion of the U.S. federal income tax consequences of the merger to U.S. holders (as defined below) of SCANA common stock that receive shares of Dominion Energy common stock in exchange for their shares of SCANA common stock in the merger. The following discussion is based upon the Code, the U.S. Treasury regulations promulgated thereunder and judicial and administrative authorities, rulings and decisions, all as in effect as of the date of this proxy statement/prospectus. These authorities may change, possibly with retroactive effect, and any such change could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion does not address any tax consequences arising under the unearned income Medicare contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010, nor does it address any tax consequences arising under the laws of any state, local or foreign jurisdiction, or under any U.S. federal laws other than those pertaining to the income tax.
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The following discussion applies only to U.S. holders of shares of SCANA common stock who hold such shares as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). Further, this discussion does not purport to consider all aspects of U.S. federal income taxation that might be relevant to U.S. holders in light of their particular circumstances and does not apply to U.S. holders subject to special treatment under the U.S. federal income tax laws (such as, for example, dealers or brokers in securities, commodities or foreign currencies, traders in securities that elect to apply a mark-to-market method of accounting, banks and certain other financial institutions, insurance companies, mutual funds, tax-exempt organizations, holders subject to the alternative minimum tax provisions of the Code, partnerships, S corporations or other pass-through entities or investors in partnerships, regulated investment companies, real estate investment trusts, controlled foreign corporations, passive foreign investment companies, former citizens or residents of the United States, U.S. expatriates, holders whose functional currency is not the U.S. dollar, holders who hold shares of SCANA common stock as part of a hedge, straddle, constructive sale or conversion transaction or other integrated investment, holders who acquired SCANA common stock pursuant to the exercise of employee stock options, through a tax qualified retirement plan or otherwise as compensation or holders who actually or constructively own more than 5% of SCANA common stock).
For purposes of this discussion, the term U.S. holder means a beneficial owner of SCANA common stock that is for U.S. federal income tax purposes (i) an individual citizen or resident of the United States, (ii) a corporation, or entity treated as a corporation for U.S. federal income tax purposes, organized in or under the laws of the United States or any state thereof or the District of Columbia, (iii) a trust if (a) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) such trust has made a valid election to be treated as a U.S. person for U.S. federal income tax purposes or (iv) an estate, the income of which is includible in gross income for U.S. federal income tax purposes, regardless of its source.
If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds SCANA common stock, the tax treatment of a partner in such partnership generally will depend on the status of the partner and the activities of the partnership. Any entity treated as a partnership for U.S. federal income tax purposes that holds SCANA common stock, and any partners in such partnership, should consult their own independent tax advisors regarding the tax consequences of the merger to their specific circumstances.
Determining the actual tax consequences of the merger to you may be complex and will depend on your specific situation and on factors that are not within our control. You should consult your own independent tax advisor as to the specific tax consequences of the merger in your particular circumstances, including the applicability and effect of the alternative minimum tax and any state, local, foreign and other tax laws and of changes in those laws.
Consequences of the Merger
The parties intend for the merger to be treated as a reorganization within the meaning of Section 368(a) of the Code for U.S. federal income tax purposes. At the time of effectiveness of the registration statement relating to this proxy statement/prospectus, Dominion Energy and SCANA have obtained written tax opinions from Morgan, Lewis & Bockius, LLP, special tax counsel to Dominion Energy, and from Mayer Brown LLP, legal counsel to SCANA, respectively, that the merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In addition, Dominion Energy expects to receive an opinion from Morgan, Lewis & Bockius LLP dated the closing date of the merger, to the effect that the merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and SCANA expects to receive an opinion from Mayer Brown LLP, dated the closing date of the merger, to the effect that the merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. These opinions were and will be based on facts and representations contained in representation letters provided by Dominion Energy and SCANA and on customary factual assumptions. The obligations of Dominion Energy and SCANA are not, however, contingent on receipt of these opinions. None of the opinions described above will be binding on the IRS or any court. Dominion Energy and
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SCANA have not sought and will not seek any ruling from the IRS regarding any matters relating to the merger, and as a result, there can be no assurance that the IRS will not assert, or that a court would not sustain, a position contrary to any of the conclusions set forth below. In addition, if any of the representations or assumptions upon which those opinions are based are inconsistent with the actual facts, the U.S. federal income tax consequences of the merger could be adversely affected. Assuming that, in accordance with the opinions described above, the merger qualifies as a reorganization within the meaning of Section 368(a) of the Code, upon the exchange of SCANA common stock for Dominion Energy common stock and cash in lieu of fractional shares, the U.S. federal income tax consequences will be as follows:
Upon exchanging your SCANA common stock for Dominion Energy common stock, you generally will not recognize gain or loss, except with respect to cash received in lieu of fractional shares of Dominion Energy common stock (as discussed below). The aggregate tax basis of Dominion Energy common stock that you receive in the merger (including any fractional shares deemed received) will equal your aggregate adjusted tax basis in the shares of SCANA common stock you surrender in the merger. Your holding period for the shares of Dominion Energy common stock that you receive in the merger (including any fractional share deemed received) will include your holding period for the shares of SCANA common stock that you surrender in the merger. If you acquired different blocks of SCANA common stock at different times or at different prices, Dominion Energy common stock you receive will be allocated pro rata to each block of SCANA common stock, and the basis and holding period of each block of Dominion Energy common stock you receive will be determined on a block-for-block basis depending on the basis and holding period of the blocks of SCANA common stock exchanged for such Dominion Energy common stock.
If you receive cash in lieu of a fractional share of Dominion Energy common stock, you will be treated as having received such fractional share of Dominion Energy common stock pursuant to the merger and then as having sold such fractional share of Dominion Energy common stock for cash. As a result, you generally will recognize capital gain or loss equal to the difference between the amount of cash received for such fractional share and your basis in your fractional share of Dominion Energy common stock as set forth above. Such capital gain or loss generally will be long-term capital gain or loss if, as of the effective date of the merger, your holding period for such fractional share (as described above) exceeds one year. Long-term capital gains of individuals are generally eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations.
Dominion Energy prepares its financial statements in accordance with GAAP. The merger will be accounted for using the acquisition method of accounting. Dominion Energy will be treated as the acquiror for accounting purposes.
In accordance with Section 33-13-102(B) of the SCBCA, SCANA shareholders will not be entitled to exercise dissenters rights, appraisal rights or other similar rights in connection with the merger and the other transactions contemplated by the merger agreement because the shares of SCANA common stock will be listed on the NYSE as of the record date of the special meeting.
Regulatory Approvals Required for the Merger
General
Under the terms of the merger agreement, to complete the merger, Dominion Energy and SCANA must obtain approvals or consents from, or make filings with, a number of U.S. federal and state regulatory authorities. The material regulatory approvals, consents and filings include the following:
| approval by the SCPSC of the cost recovery plan; |
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| the SCPSC shall have made a SCPSC merger determination; |
| authorization from the NCUC for Dominion Energy and SCANA to enter into the proposed business combination transaction as required by North Carolina Gen. Stat. § 62-111(a); |
| approval by the GPSC of the indirect change of ownership of SCANA Energy Marketing, Inc., which we refer to as SEMI, from SCANA to Dominion Energy as required by O.C.G.A. § 46-4-25; |
| the expiration or early termination of certain waiting periods under the HSR Act and the related rules and regulations, which provide that certain acquisition transactions may not be completed until required information has been furnished to the Antitrust Division of the DOJ and the FTC (early termination of the HSR Act waiting period was granted on February 1, 2018); |
| authorization from the FERC pursuant to Section 203 of the FPA; |
| consent by the NRC to the indirect transfer of control of NRC licenses from SCANA to Dominion Energy as required by Section 184 of the Atomic Energy Act and the NRCs implementing regulations in 10 C.F.R. 50.80; and |
| consent from the FCC, for the transfer of control over certain FCC licenses for private internal communications held by certain SCANA subsidiaries (completion of the merger is not conditioned on receipt of FCC approval). |
Dominion Energy and SCANA have made and will make various filings and submissions for the above-mentioned authorizations and approvals and will each use their reasonable best efforts to obtain these authorizations and approvals, subject to certain conditions, including that these authorizations and approvals (other than the applicable SCPSC approvals which are subject to a different standard described in the immediately following paragraph) or any law or order relating to them do not impose or require any undertakings, obligations or remedial actions that constitute a burdensome condition (which is described in The Merger AgreementReasonable Best Efforts to Obtain Regulatory Approvals beginning on page 92 of this proxy statement/prospectus) Dominion Energy and SCANA currently anticipate completing the merger in 2018. Although Dominion Energy and SCANA believe that the required authorizations, approvals and consents described in further detail below to complete the merger will be received within that time frame, there can be no assurance as to the precise timing of or the ultimate ability of Dominion Energy and SCANA to obtain such authorizations, approvals or consents (or any additional authorizations, approvals or consents which may otherwise become necessary). The following is a brief summary of required federal and state regulatory filings and approvals related to the merger.
SCPSC Approval
No statute or rule expressly requires approval of the merger by the SCPSC. However, the SCPSC has in the past sought to exercise authority to review and approve business combinations similar to the merger pursuant to S.C. Code Ann. § 58-27-1300 or, without expressly asserting jurisdiction over a merger, has issued findings that the merger was in the public interest or that there was an absence of harm to South Carolina rate payers as a result of the merger. As a result, the merger agreement contains a closing condition to the effect that the SCPSC shall have made a SCPSC merger determination. If the SCPSC fails or declines to make a SCPSC merger determination, then Dominion Energy will not be obligated to complete the merger.
In addition, on December 12, 2017, SCE&G made a public commitment to the SCPSC that on or before January 12, 2018, it would submit a comprehensive plan to reduce the costs incurred by customers associated with the abandoned NND project. On January 12, 2018, Dominion Energy and SCE&G filed the SCPSC petition with the SCPSC seeking a ruling from the SCPSC approving the merger with no material changes to the terms of the merger or making a finding that the merger is in the public interest or that there is an absence of harm to South Carolina rate payers as a result of the merger. The SCPSC petition further requests the SCPSC to approve
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the cost recovery plan with no material change to the proposed terms, conditions or undertakings set forth in the cost recovery plan and no significant change to the economic value of the cost recovery plan, in each case as reasonably determined by Dominion Energy in good faith. There is no guarantee that the SCPSC will take these actions, or that it will not impose conditions on such approvals that result in a failure of a closing condition to the merger.
NCUC Approval
Approval of the business combination transaction is required under N.C.G.S. § 62-111(a) for the indirect transfer of ownership of Public Service Company of North Carolina, Inc., which we refer to as PSNC, from SCANA to Dominion Energy. The standard for approval is that the merger is justified by the public convenience and necessity. In a 2016 decision, the NCUC concluded that a merger was justified by the public convenience and necessity and serves the public interest upon findings that the merger would have no adverse impact on the rates and services provide by the utility, the utilitys rate payers were protected as much as reasonably possible from potential costs and risks resulting from the merger, and the known and potential benefits of the merger were sufficient to offset the potential costs and risks. See Order Approving Merger Subject to Regulatory Conditions and Code of Conduct, Docket Nos. E-2, Sub 1095, E-7, Sub 1100, G-9, Sub 682, at 16 (Sept. 29, 2016). On January 24, 2018, Dominion Energy and SCANA filed a joint application with the NCUC seeking approval to engage in the business combination transaction. There is no guarantee that the NCUC will approve the merger or that it will not impose conditions on its approval that are unacceptable to either Dominion Energy or SCANA.
GPSC Approval
Approval of the merger is required under O.C.G.A. § 46-4-25 for the indirect transfer of ownership of SEMI, from SCANA to Dominion Energy. The GPSC must act on an application to amend a certificate of authority to reflect a change in ownership within ninety (90) days from the date the application is deemed complete. On January 19, 2018, Dominion Energy and SEMI filed a joint application with the GPSC seeking approval of the change of ownership. There is no guarantee that the GPSC will approve the indirect transfer of ownership or that it will not impose conditions on its approval that are unacceptable to either Dominion Energy or SCANA.
HSR Act and Antitrust
Completion of the merger is subject to the receipt of antitrust clearance in the United States. Under the HSR Act and the rules and regulations promulgated thereunder, the merger may not be completed until notification and report forms have been filed with the DOJ and the FTC and the applicable waiting period has expired or been terminated.
The waiting period with respect to the notification and report forms filed under the HSR Act expires 30 calendar days after the date both parties have submitted such filings, unless otherwise extended or terminated. Dominion Energy and SCANA filed the required HSR Act notification and report forms with the DOJ and FTC on January 19, 2018, and requested early termination of the HSR Act waiting period. On February 1, 2018, the FTC notified Dominion Energy and SCANA that it had granted early termination of the waiting period.
At any time before or after completion of the merger, notwithstanding the termination of the waiting period under the HSR Act, the DOJ, FTC, or any U.S. state, could take such action under the antitrust laws as each deems necessary or desirable in the public interest, including seeking to enjoin the completion of the merger or seeking divestiture of substantial assets of Dominion Energy and SCANA. Private parties also may seek to take legal action under the antitrust laws under certain circumstances. There can be no assurance that the DOJ, the FTC or any other governmental entity or any private party will not attempt to challenge the merger on antitrust or competition grounds, and, if such a challenge is made, there can be no assurance as to its result. Under the merger agreement, Dominion Energy and SCANA generally must use reasonable best efforts to take all
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necessary actions to obtain all regulatory approvals required to complete the merger, subject to certain exceptions. If the merger is not completed within 12 months after the expiration or early termination of the applicable HSR Act waiting period, Dominion Energy and SCANA will be required to submit new notification and report forms to the DOJ and the FTC, and a new HSR Act waiting period will have to expire or be terminated before the merger can be completed.
FERC Approval
Each of Dominion Energy and SCANA is a holding company under the Public Utility Holding Company Act of 2005, which we refer to as PUHCA, that has subsidiaries that either are public utilities, transmitting utilities, electric utilities, electric utility companies or a holding company in a holding company system that includes a transmitting utility or an electric utility company as such terms are defined under PUHCA, the FPA and the FERCs implementing regulations. One of the requirements of Section 203 of the FPA is that no holding company in a holding company system that includes a transmitting utility or an electric utility may purchase, acquire, merge or consolidate with a transmitting utility, an electric utility company or a holding company in a holding company system that includes a transmitting utility or electric utility company without prior FERC authorization. Consequently, the FERCs approval of the merger under Section 203 of the FPA is required.
The FERC must authorize the merger if it finds that the merger is consistent with the public interest. The FERC has stated that, in analyzing a merger or transaction under Section 203 of the FPA, it will evaluate the impact of the merger on:
| competition in electric power markets; |
| the applicants wholesale rates; and |
| state and federal regulation of the applicants. |
The FERC must also find that the merger will not result in the cross-subsidization by utilities of their non-utility affiliates or the improper encumbrance or pledge of utility assets. If such cross-subsidization or encumbrances were to occur as a result of the merger, the FERC then must find that such cross-subsidization or encumbrances are consistent with the public interest.
The FERC will review these factors to determine whether the merger is consistent with the public interest. If the FERC finds that the merger would adversely affect competition in wholesale electric power markets, rates for transmission or the wholesale sale of electric energy, or regulation, or that the merger would result in cross-subsidies or improper encumbrances that are not consistent with the public interest, it may, pursuant to the FPA, impose upon the merger remedial conditions intended to mitigate such effects or it may decline to authorize the merger. The FERC is required to rule on a completed merger application not later than 180 days from the date on which the completed application is filed. The FERC may, however, for good cause, issue an order extending the time for consideration of the merger application by an additional 180 days. If the FERC does not issue an order within the statutory deadline, then the transaction is deemed to be approved. Dominion Energy and SCANA expect that the FERC will approve the merger within the initial 180-day review period. However, there is no guarantee that the FERC will not extend the time period for its review or will not impose conditions on its approval that are unacceptable to Dominion Energy or SCANA.
NRC Approval
Completion of the merger is subject to the issuance of an order by the NRC consenting to the indirect transfer of control of NRC License No. NPF-93, Docket No. 52-027, NRC License No. NPF-94, Docket No. 52-028, and NRC License No. NPF-126, Docket No. 50-395 from SCANA to Dominion Energy as required by Section 184 of the Atomic Energy Act and the NRCs implementing regulations in 10 C.F.R. 50.80. On
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January 25, 2018, Dominion Energy and SCANA filed an application requesting that NRC issue an order consenting to the indirect transfer of control of the licenses. There is no guarantee that the NRC will consent to the indirect transfer of control or that it will not impose conditions on its consent that are unacceptable to either Dominion Energy or SCANA. In addition, while completion of the merger is not conditioned on their receipt, consent is required for the indirect transfer of control of certain other related licenses issued by the State of South Carolina and the State of Tennessee.
FCC Approval
Under FCC regulations implementing provisions of the Communications Act of 1934, as amended, an entity holding private radio licenses for internal communications purposes generally must obtain the approval of the FCC before the direct or indirect transfer of control or assignment of those licenses. SCANA and certain SCANA subsidiaries hold FCC licenses for private internal communications and, thus, must obtain prior FCC approval to assign or transfer direct or indirect control of those licenses. Once the FCC has consented to the transfer of control, the parties have 180 days to complete the merger. If the merger does not close within 180 days of receiving FCC consent, the parties can request an extension of time to complete the transaction. The FCC customarily grants extension requests of this nature. There is no guarantee that the FCC will consent to the transfer of control or that it will not impose conditions on its consent that are unacceptable to either Dominion Energy or SCANA. Completion of the merger is not conditioned on the receipt of this FCC consent.
Material Contracts between SCANA and Dominion Energy
In December 2014, SCANA and Dominion Energy entered into a definitive agreement for the sale by SCANA of its subsidiary, Carolina Gas Transmission Corporation, to Dominion Energy for approximately $450 million. The sale was completed by the parties in January 2015.
Legislation Relating to the Merger
Following the announcement of the merger, the South Carolina legislature has proposed two (2) pieces of legislation relating to the merger. First, the South Carolina House of Representatives has passed H.4375. This bill, among other things, repeals the BLRA for future projects, restricts SCE&Gs ability to file a general rate case proceeding which seeks to recover new nuclear expenses and directs the SCPSC to, within five (5) days of enactment, set an experimental rate that SCE&G would charge ratepayers, the result of which experimental rate would be a reduction in SCE&Gs lawfully approved rate revenue of approximately $37,000,000 per month. This bill is currently pending before the South Carolina Senate. If this bill becomes law, Dominion Energy would not be obligated to complete the merger if it is determined that the bill has or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries. Second, S.954 is currently pending in the South Carolina Senate. This joint resolution, among other things, prohibits the SCPSC from taking any action on any request made under the BLRA until 90 days after the South Carolina General Assembly adjourns Sine Die. If S.954 becomes law, and the House and Senate adjourn Sine Die in November 2018 as is presently contemplated, then the SCPSC would not be allowed to take action on matters that are required to satisfy Dominion Energys conditions to closing under the merger agreement until early 2019, and Dominion Energy would not be obligated to complete the merger until such conditions are satisfied.
Litigation Relating to the Merger
Following the announcement of the merger, three (3) lawsuits have asserted claims relating to the merger. First, a pre-existing lawsuit filed derivatively on behalf of SCANA was amended to assert putative class action claims on behalf of SCANA shareholders in the Court of Common Pleas of the County of Richland, South Carolina: Firemens Retirement System of St. Louis v. Addison, et al., 2017-CP-400-7547. This lawsuit asserts claims against certain officers of SCANA and members of the SCANA board for breach of fiduciary duties, waste of corporate assets, and unjust enrichment, and against Dominion Energy and Merger Sub for aiding and abetting the alleged breaches of fiduciary duties. Second, two (2) putative class actions on behalf of SCANA
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shareholders have been filed in the Court of Common Pleas of the Counties of Lexington and Richland, South Carolina, respectively: City of Warren Police and Fire Retirement System v. SCANA Corporation, et al., 2018-CP-320-0268 and Metzler Asset Management GmbH and Joseph Heinz v. Aliff, et al., 2018-CP-400-0816. The first of these lawsuits asserts claims against an officer of SCANA and certain members of the SCANA board for breach of fiduciary duties in connection with the merger, and against SCANA, Dominion Energy and Merger Sub for aiding and abetting the alleged breaches. The second asserts claims against certain members of the SCANA board for breach of fiduciary duties in connection with the merger, and against Dominion Energy and Merger Sub for aiding and abetting the alleged breaches. Collectively, these three (3) lawsuits allege, among other things, that the individual defendants created a false impression to investors and state regulators that the NND project was running smoothly within a reasonable budget and on schedule to increase their compensation and maintain their positions, which has exposed SCANA to billions of dollars in costs and damages in connection with numerous civil and criminal proceedings. The lawsuits also allege that the merger is designed to unlawfully divest SCANA shareholders of their holdings without providing them the maximized value to which they are entitled and without adequate information to evaluate the transaction. Specifically, these plaintiffs allege that the individual defendants were motivated to approve the merger for an inadequate price for the purpose of extinguishing the right of SCANA shareholders to pursue the derivative claims against them to avoid personal liability, and because they will receive significant personal financial benefits in the merger not shared by other SCANA shareholders. The lawsuits also allege that the consideration proposed in the merger fails to adequately account for and value the derivative claims against the individual defendants that Dominion Energy will acquire in the merger, and that because Dominion Energy has agreed to indemnify the individual defendants in the merger agreement, it is unlikely that Dominion Energy will pursue these claims if the merger is consummated. The lawsuits also allege that the merger is unfair to SCANA shareholders because if SCANA were offered the same rate settlement terms that Dominion Energy is proposing in connection with the transaction, SCANAs stock price would increase substantially above the value of the merger consideration. The lawsuits also allege that the merger was the result of a flawed process and self-dealing, that the merger consideration was insufficient and that certain provisions of the merger agreement might dissuade an alternative bidder from surfacing. The lawsuits seek to enjoin the merger and rescind the merger agreement. In addition, the second and third lawsuits seek in the alternative, should the merger be completed, an award of unspecified monetary damages.
Certain lawsuits and regulatory actions have been filed against SCANA and SCE&G in connection with the abandonment of the NND project. If the relief requested in these matters (including a request for declaratory judgment that the BLRA is unconstitutional) is granted, Dominion Energy might not be obligated to complete the merger.
Exchange of Shares in the Merger
For a description of the exchange and payment procedures with respect to the shares of SCANA common stock under the merger agreement, please see the section entitled The Merger AgreementExchange and Payment Procedures on page 86 of this proxy statement/prospectus.
Interests of SCANAs Directors and Executive Officers in the Merger
In considering the SCANA boards recommendation that you vote to approve the merger, you should be aware that SCANAs directors and executive officers have economic interests in the merger that are different from, and in addition to, those of SCANAs shareholders generally. These interests, which may create actual or potential conflicts of interests, are, to the extent material, described below. The SCANA board was aware of and considered these interests, among other matters, in evaluating and negotiating the merger agreement, in reaching its decision to approve the merger agreement, and in recommending to SCANAs shareholders that the merger agreement be approved. For the purposes of the SCANA plans and agreements described below, the completion of the transactions contemplated by the merger agreement will constitute a change in control of SCANA.
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Allegations of Shareholder Derivative and Class Action Suits
The directors and officers of SCANA are also alleged to have certain interests in the transaction as described in the section entitled Litigation Relating to the Merger beginning on page 71 of this proxy statement/ prospectus.
Equity Compensation
Pursuant to the merger agreement, upon completion of the merger, each performance share award and restricted stock unit award will be cancelled in exchange for a cash payment, as described below. The payment shall be made as soon as reasonably practicable after the effective time of the merger, but in any event within three (3) business days thereafter; provided, however, that any performance share awards and restricted stock unit awards that are subject to Section 409A of the Code shall be paid at the earliest time permitted under, and in accordance with, the terms of the applicable award agreements and relevant documents and in accordance with Section 409A of the Code.
Treatment of Performance Share Awards
At the effective time of the merger, each performance share award that is outstanding immediately prior to the effective time of the merger will fully vest at the target level of performance and shall be cancelled and converted automatically into the right to receive the following in respect of each share of SCANA common stock underlying such performance share award: (i) the merger consideration multiplied by (ii) the average price, in cash and without interest (we refer to the product of clauses (i) and (ii) in this sentence as the equity award consideration).
Treatment of Restricted Stock Units
At the effective time of the merger, each restricted stock unit award that is outstanding immediately prior to the effective time of the merger will fully vest and be cancelled and converted automatically into the right to receive the equity award consideration in respect of each share of SCANA common stock underlying such restricted stock unit award.
Treatment of Deferred Units
At the effective time of the merger, each deferred unit in respect of SCANA common stock credited or deemed credited to the SCANA stock ledger under the SCANA Director Compensation and Deferral Plan or the SCANA Executive Deferred Compensation Plan that is outstanding immediately prior to the effective time of the merger shall be converted automatically into a number of deferred units in respect of Dominion Energy common stock equal to the product of (i) the deferred unit, multiplied by (ii) the merger consideration, to be payable pursuant to the terms of the applicable plan.
Payments under the Supplementary Key Executive Severance Benefits Plan
The SCANA Corporation Supplementary Key Executive Severance Benefits Plan, which we refer to as the Supplementary Severance Plan, provides for payments to SCANAs senior executive officers if, within twenty-four (24) months after a change in control of SCANA, a senior executive officers employment is terminated without just cause or the senior executive officer terminates his or her employment for good reason.
Under the Supplementary Severance Plan, SCANA would be deemed to have just cause for terminating the employment of a senior executive officer if he or she: (i) willfully and continually failed to substantially perform his or her duties after SCANA made demand for substantial performance; (ii) willfully engaged in conduct that is demonstrably and materially injurious to SCANA; or (iii) were convicted of a felony or certain misdemeanors.
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A senior executive officer would be deemed to have good reason for terminating his or her employment under the Supplementary Severance Plan if, after a change in control, without his or her consent, any one or more of the following occurred: (i) a material diminution in his or her base salary; (ii) a material diminution in his or her authority, duties, or responsibilities; (iii) a material diminution in the authority, duties, or responsibilities of the supervisor to whom he or she is required to report, including a requirement that he or she report to one of our officers or employees instead of reporting directly to the SCANA board; (iv) a material diminution in the budget over which he or she retains authority; (v) a material change in the geographic location at which he or she must perform services; or (vi) any other action or inaction that constitutes a material breach by SCANA of the agreement under which he or she provides services.
In the event of such a termination, the Supplementary Severance Plan entitles participants to the following payments and benefits:
| an amount intended to approximate 2.5 times the sum of: (i) his or her annual base salary (before reduction for certain pre-tax deferrals) in effect as of the change in control, plus (ii) his or her full targeted annual incentive opportunity in effect as of the change in control; |
| an amount equal to the participants full targeted annual incentive opportunity in effect under each existing annual incentive plan or program for the year in which the change in control occurs; |
| if the participants benefit under the SCANA Corporation Supplemental Executive Retirement Plan, which we refer to as the SERP, is determined using the final average pay formula under the SCANA Corporation Retirement Plan, which we refer to as the Retirement Plan, an amount equal to the present lump sum value of the actuarial equivalent of his or her accrued benefit under the Retirement Plan and the SERP through the date of the change in control, calculated as though he or she had attained age 65 and completed 35 years of benefit service as of the date of the change in control, and as if his or her final average earnings under the Retirement Plan equaled the amount determined after applying cost-of-living increases to his or her annual base salary from the date of the change in control until the date he or she would reach age 65, and without regard to any early retirement or other actuarial reductions otherwise provided in any such plan (this benefit will be offset by the actuarial equivalent of the participants benefit provided by the Retirement Plan and the participants benefit under the SERP); |
| if the participants benefit under the SERP is determined using the cash balance formula under the Retirement Plan, an amount equal to the present value as of the date of the change in control of his or her accrued benefit, if any, under the SERP, determined prior to any offset for amounts payable under the Retirement Plan, increased by the present value of the additional projected pay credits and periodic interest credits that would otherwise accrue under the Retirement Plan (based on the Retirement Plans actuarial assumptions), assuming that he or she remained employed until reaching age 65, and reduced by his or her cash balance account under the Retirement Plan, and further reduced by an amount equal to his or her benefit under the SERP; |
| an amount equal to the value of all amounts credited to each participants SCANA Corporation Executive Deferred Compensation Plan, which we refer to as the EDCP, ledger account as of the date of the change in control, plus interest on the benefits payable under the EDCP at a rate equal to the sum of the prime interest rate as published in the Wall Street Journal on the most recent publication date prior to the date of the change in control plus 3%, calculated through the end of the month preceding the month in which the benefits are distributed, reduced by the value of his or her benefit under the EDCP as of the date of the change in control; and |
| an amount equal to the projected cost for medical, long-term disability and certain life insurance coverage for three (3) years following the change in control as though he or she had continued to be a SCANA employee. |
Pursuant to the merger agreement, with respect to Mr. Addison, Mr. Kissam and Ms. Griffin, if any such executives salary has not been adjusted to at least the low point of SCANAs pre-established salary range for his
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or her applicable pay grade which pay grade was adjusted in respect of recent promotions, benefits under the Supplementary Severance Plan will be provided to such executive as if such executives salary had been adjusted to the low point. The low point of the salary range represents a salary at 85% of the midpoint of the range for an executives applicable pay grade.
In addition to the benefits above (unless their agreements with SCANA provide otherwise), participants in the Supplementary Severance Plan are entitled to benefit distribution under the Long-Term Equity Compensation Plan equal to 100% of the target awards for all performance periods not completed as of the date of the change in control, if any; however, the treatment of equity awards is prescribed under the merger agreement and further described under Interests of SCANAs Directors and Executive Officers in the MergerEquity Compensation above. Participants in the Supplementary Severance Plan are also be entitled to any amounts previously earned, but not yet paid, under the terms of any of SCANAs other plans or programs.
Retirement Benefits
Supplemental Executive Retirement Plan
The SERP is an unfunded nonqualified defined benefit plan that was established for the purpose of providing supplemental retirement income to certain SCANA employees, including the executive officers. Subject to the terms of the SERP, a participant becomes eligible to receive benefits under the SERP upon termination of his or her employment with SCANA (or at such later date as may be provided in a participants agreement), if the participant has become vested in his or her accrued benefit under the Retirement Plan prior to termination of employment. However, if a participant is involuntarily terminated following or incident to a change in control and prior to becoming fully vested in his or her accrued benefit under the Retirement Plan, the participant will automatically become fully vested in his or her benefit under the SERP and a benefit will be payable under the SERP.
Executive Deferred Compensation Plan
The EDCP is a nonqualified deferred compensation plan in which SCANAs executive officers, including the named executive officers, and SCANAs directors, may participate. Amounts deferred under the EDCP are required to be paid, or begin to be paid, as soon as practicable following the earliest of a participants death, separation from service, or with respect to pre-2005 deferrals and hypothetical earnings thereon, disability.
Director Deferred Compensation
The Director Compensation and Deferral Plan, which we refer to as the DCDP, is a nonqualified deferred compensation plan pursuant to which SCANAs non-employee directors may defer annual stock and cash retainer fees. Amounts are generally paid, or begin to be paid, on a separation from service from the SCANA board for any reason or a date certain previously elected by the director (and subject to the ability to make subsequent deferrals pursuant to the terms set forth in the DCDP). In addition, one director has an account balance under the Voluntary Deferral Plan, a nonqualified deferred compensation plan that was closed effective January 1, 2001, which account balance will generally be paid, or begin to be paid, upon separation from service from the SCANA board for any reason (and subject to the ability to make subsequent deferrals pursuant to the terms set forth in the Voluntary Deferral Plan).
Director Endowment Plan
The SCANA Director Endowment Plan, which was closed to new participants effective January 1, 2013, provides for SCANA to make tax deductible, charitable contributions totaling $500,000 per eligible director to institutions of higher education designated by the applicable director. A portion is contributed upon retirement of the director and the remainder upon the directors death.
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Agreements with Dominion Energy
As of the date of this proxy statement/prospectus, none of the SCANA executive officers has entered into any agreement with Dominion Energy or any of its affiliates regarding employment with, or the right to purchase or participate in the equity of, Dominion Energy or one or more of its affiliates. Prior to or following the closing of the merger, however, some or all of the SCANA executive officers may discuss or enter into agreements with Dominion Energy or any of its affiliates regarding employment with, or the right to purchase or participate in the equity of, Dominion Energy or one or more of its affiliates. For information on Dominion Energys directors and management after the merger, please see the section entitled Directors and Management of Dominion Energy After the Merger beginning on page 65 of this proxy statement/prospectus.
Director and Officer Indemnification
Under the merger agreement, after the effective time of the merger, the SCANA directors and officers are entitled to continued indemnification and insurance coverage relating to their service as SCANA directors and officers prior to the effective time of the merger. For a more complete description, please see the section entitled The Merger AgreementIndemnification and Insurance beginning on page 105 of this proxy statement/prospectus.
Potential Payments upon a Termination in Connection with a Change in Control
In accordance with Item 402(t) of Regulation S-K, the table below sets forth the estimated amounts of compensation that are based on or otherwise relate to the merger and that may be payable to those individuals who were listed in the Summary Compensation Table that was set out in SCANAs most recent securities filing for which disclosure was required under Item 402(c) of Regulation S-K other than executive officers who cease to be employed by SCANA during 2017 but including Ms. Griffin, who became Chief Financial Officer of SCANA effective January 1, 2018. We refer to these individuals as the named executive officers.
Please see the section entitled The Merger Interests of SCANAs Directors and Executive Officers in the Merger for further information about the compensation disclosed in the table below. The amounts shown in the table below are estimates based on multiple assumptions that may or may not actually occur or be accurate on the relevant date, including the assumptions described below and in the footnotes to the table. This document is being filed before SCANAs Compensation Committee has determined base salary adjustments for 2018, annual target incentive awards for 2018, or equity grants for 2018, all of which determinations are typically made in February of each year and are expected to be made in the latter half of February 2018. Accordingly, for purposes of calculating the amounts set forth below, the following assumptions have been made: for each of Mr. Addison, Mr. Kissam, and Ms. Griffin, his or her salary has been assumed to be adjusted to the low point of the pre-established salary range for his or her applicable pay grade (which pay grade was adjusted in respect of recent promotions), and each was assumed to receive a 2018 annual target incentive award and equity grants based on the pay grade and adjusted salary. The amounts in the table do not otherwise reflect certain compensation actions that may occur before completion of the merger, including certain compensation actions that SCANA is permitted to take prior to the completion of the merger, as described in the section entitled The Merger AgreementConduct of Business. For purposes of calculating such amounts, the following additional assumptions were used:
| the relevant price per share of SCANA common stock is $45.19, which is the average closing price of a share of SCANA common stock over the first five (5) business days following the first public announcement of the merger agreement; |
| the effective time of the merger is September 30, 2018, which is the assumed date of completion of the merger solely for purposes of the disclosure in this section; and |
| the employment of each executive officer of SCANA will have been terminated by Dominion Energy without cause or due to the executive officers resignation for good reason, as such terms are defined in |
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the relevant plans and agreements, in either case following the assumed effective time of the merger on September 30, 2018. |
Merger-Related Compensation
Named Executive Officer | Cash ($)(1) | Equity($)(2) | Pension/NQDC ($)(3) |
Perquisites/ Benefits($) |
Tax Reimbursement ($) |
Other ($) | Total ($) | |||||||||||||||||||||
K. B. Marsh(4) |
$ | 0 | $ | 3,058,911 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 3,058,911 | ||||||||||||||
J. E. Addison |
$ | 5,297,314 | $ | 4,257,356 | $ | 845,547 | $ | 0 | $ | 0 | $ | 0 | $ | 10,400,217 | ||||||||||||||
S. A. Byrne(4) |
$ | 0 | $ | 1,111,410 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 1,111,410 | ||||||||||||||
W. K. Kissam |
$ | 2,369,140 | $ | 1,442,425 | $ | 343,966 | $ | 0 | $ | 0 | $ | 0 | $ | 4,155,531 | ||||||||||||||
I. N. Griffin |
$ | 1,941,402 | $ | 716,382 | $ | 251,681 | $ | 0 | $ | 0 | $ | 0 | $ | 2,909,465 |
(1) | Cash. The amounts listed in this column consist of (a) an amount equal to 2.5 times the sum of base salary and target short-term incentive award, (b) an amount equal to the full target annual incentive opportunity for the year in which the merger occurs, and (c) an amount equal to the projected cost for insurance benefits for three years. All such benefits are double trigger and are provided only on a termination without just cause or resignation for good reason during the period within twenty-four (24) months after a change in control of SCANA. For further details, see the section entitled Interests of SCANAs Directors and Executive Officers in the MergerPayments under the Supplementary Key Executive Severance Benefits Plan. Messrs. Marsh and Byrne retired January 1, 2018 and are not eligible for any severance as a result of the merger. |
Named Executive Officer | Severance | Target Bonus | Amount Related to Benefits |
Total | ||||||||||||
K. B. Marsh(4) |
$ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||
J. E. Addison |
$ | 4,395,223 | $ | 832,779 | $ | 69,312 | $ | 5,297,314 | ||||||||
S. A. Byrne(4) |
$ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||
W. K. Kissam |
$ | 1,968,410 | $ | 310,174 | $ | 90,556 | $ | 2,369,140 | ||||||||
I. N. Griffin |
$ | 1,617,720 | $ | 242,658 | $ | 81,024 | $ | 1,941,402 |
(2) | Equity. Consists of (a) unvested performance share awards and (b) unvested restricted stock units (each including dividend equivalents) that will become vested at the effective time of the merger and paid out in cash as described above pursuant to the merger agreement. Pursuant to the merger agreement, all such benefits are single trigger. For Messrs. Marsh and Byrne, only a pro rata portion of the performance shares (relating to the period during which each was employed) is included pursuant to the terms of their award agreements. For further details regarding the treatment of SCANA equity awards in connection with the merger, see the section entitled Interests of SCANAs Directors and Executive Officers in the MergerEquity Compensation. |
Named Executive Officer | Performance Share Awards |
Restricted Stock Units |
Total | |||||||||
K. B. Marsh(4) |
$ | 1,622,177 | $ | 1,436,734 | $ | 3,058,911 | ||||||
J. E. Addison |
$ | 2,972,874 | $ | 1,284,482 | $ | 4,257,356 | ||||||
S. A. Byrne(4) |
$ | 589,376 | $ | 522,034 | $ | 1,111,410 | ||||||
W. K. Kissam |
$ | 1,006,914 | $ | 435,511 | $ | 1,442,425 | ||||||
I. N. Griffin |
$ | 501,829 | $ | 214,553 | $ | 716,382 |
(3) | Pension/Non-Qualified Deferred Compensation. Consists of increased payments pursuant to the EDCP, (with interest as provided under the Supplementary Severance Plan), and the SERP (including the excess payable as provided under the Supplementary Severance Plan). All such benefits are double trigger. For further details, see the section entitled Interests of SCANAs Directors and Executive Officers in the |
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Merger. Messrs. Marsh and Byrne retired January 1, 2018 and are not eligible for any pension/non-qualified deferred compensation benefit as a result of the merger. |
(4) | Messrs. Marsh and Byrne retired effective January 1, 2018. |
Dominion Energy currently pays a quarterly dividend of $0.835 per share. SCANA currently pays a quarterly dividend of $0.6125 per share and has agreed in the merger agreement that it will not increase such dividend prior to the completion of the merger without Dominion Energys prior written consent. Following the closing of the merger, Dominion Energy expects to continue its current dividend for shareholders of the combined company, subject to any factors that the Dominion Energy board in its discretion deems relevant. For additional information on the treatment of dividends under the merger agreement, see the section entitled The Merger AgreementConduct of Business beginning on page 101 of this proxy statement/prospectus.
Listing of Dominion Energy Common Stock
Shares of Dominion Energy common stock currently trade on the NYSE under the stock symbol D. It is a condition to the completion of the merger that Dominion Energy common stock issuable in the merger be approved for listing on the NYSE, subject to official notice of issuance. Dominion Energy has agreed to use its reasonable best efforts to cause Dominion Energy common stock issuable in connection with the merger to be approved for listing on the NYSE and expects to obtain NYSEs approval to list such shares prior to completion of the merger, subject to official notice of issuance.
Delisting and Deregistration of SCANA Common Stock
Shares of SCANA common stock currently trade on the NYSE under the stock symbol SCG. SCANA has agreed pursuant to the merger agreement to cooperate with Dominion Energy to use its reasonable best efforts to take all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable laws and rules and regulations of the NYSE to enable the delisting of SCANA common stock from the NYSE and deregistration of SCANA common stock under the Exchange Act as promptly as practicable after the effective time of the merger.
Certain Forecasts Prepared by SCANAs Management
While SCANA provides public earnings guidance from time to time, SCANA does not as a matter of course publicly disclose other financial forecasts as to future earnings or financial performance or results because of, among other reasons, the uncertainty underlying assumptions and estimates. However, SCANAs management prepared and provided the SCANA board with certain non-public financial forecasts in connection with the SCANA boards consideration and evaluation of a possible merger with Dominion Energy. As described below, certain of these financial forecasts were also provided to SCANAs financial advisors, Morgan Stanley and RBC Capital Markets, for their use and reliance in connection with their respective financial analyses and opinions summarized in Opinions of SCANAs Financial Advisors beginning on page 47 of this proxy statement/prospectus. In addition, as described below, certain of these financial forecasts were provided to Dominion Energy and its advisors in connection with the proposed transaction.
Neither SCANAs independent auditors nor any other independent accountants have compiled, examined, or performed any procedures with respect to the prospective financial information contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability, and assume no responsibility for, and disclaim any association with, the prospective financial information. Further, the report of SCANAs independent auditors included in this proxy statement/prospectus relates to SCANAs historical financial information. It does not extend to prospective financial information and should not be read to do so.
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SCANA has included a summary of these financial forecasts to give SCANA shareholders access to certain non-public information made available to the SCANA board, SCANAs advisors, and Dominion Energy and its advisors in connection with the proposed transaction with Dominion Energy. SCANA has not included these financial forecasts to influence the decision of the SCANA shareholders as to whether to vote for or against the merger proposal.
The inclusion of this information should not be regarded as an indication that SCANA, Dominion Energy or any of their respective affiliates, directors, officers, employees, agents, advisors or other representatives considered, or now considers, such financial forecasts to be material or to be necessarily predictive of actual future results, and readers are cautioned not to place undue reliance on this information.
The financial forecasts have been prepared by, and are the responsibility of, SCANAs management. SCANAs management believes that the financial forecasts were prepared in good faith and on a reasonable basis based on the best information available to SCANAs management when prepared. The financial forecasts were not prepared with a view toward complying with GAAP, the published guidelines of the SEC regarding projections and the use of non-GAAP measures, or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information.
The financial forecasts include non-GAAP financial measures, which were presented because SCANAs management believed they could be useful indicators of SCANAs projected future operating performance and cash flow. However, non-GAAP measures presented in the financial forecasts may not be comparable to similarly titled measures of other companies.
The financial forecasts prepared by SCANAs management were prepared for SCANAs internal use and not with a view toward public disclosure and are subjective in many respects. As a result, there can be no assurance that the prospective earnings or financial performance or results set forth in the financial forecasts will be realized or that actual future results will not be significantly higher or lower than estimated. These financial forecasts were based on numerous variables, which are inherently uncertain and may be beyond SCANAs control. Since the financial forecasts cover multiple years, by their nature, they become subject to greater uncertainty with each successive year. Important factors that may affect actual results and cause these financial forecasts not to be achieved include, but are not limited to, risks and uncertainties relating to SCANAs business, regulatory decisions and the regulatory environment generally, changes in applicable laws, general business and economic conditions, the occurrence of unusual weather events, and other factors described or referenced under Cautionary Statement Regarding Forward-Looking Statements beginning on page 25 of this proxy statement/prospectus.
In addition, financial forecasts also reflect assumptions that are subject to change and do not reflect revised prospects for our business, changes in applicable laws or regulations, changes in general business or economic conditions or any other transaction or event that has occurred or that may occur subsequent to the time the financial forecasts were prepared and that was not anticipated at the time the financial forecasts were prepared. The financial forecasts also do not take into account the merger or other transactions contemplated by the merger agreement or the effect of the failure of the merger to occur, and should not be viewed as necessarily indicative of actual or continuing results in that context.
Accordingly, there can be no assurance that the financial forecasts will be realized, and actual results may vary materially from those shown, including because of the risks and other factors described in the section entitled Cautionary Statement Regarding Forward-Looking Statements beginning on page 25 of this proxy statement/prospectus. None of SCANA, Dominion Energy or any of their respective affiliates, directors, officers, employees, agents, advisors or other representatives gives or can give any assurance that actual results will not differ from the financial forecasts, and none of SCANA, Dominion Energy or any of their respective affiliates, directors, employees, agents, advisors or other representatives undertakes any obligation to update or otherwise revise or reconcile the financial forecasts to reflect circumstances existing after the date the financial forecasts
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were generated or to reflect the occurrence of future events even in the event that any or all of the assumptions underlying the financial forecasts are shown not to be appropriate.
SCANA does not intend to make publicly available any update or other revision to the financial forecasts, except as otherwise required by law. None of SCANA, Dominion Energy or any of their respective affiliates, directors, officers, employees, agents, advisors or other representatives has made or makes any representation or warranty to any shareholder of SCANA or other person regarding the ultimate performance of SCANA compared to the information contained in the financial forecasts or that the financial forecasts will be achieved. The financial forecasts do not take into account any circumstances or events occurring after the date on which such forecasts were prepared.
Additional information relating to the principal assumptions used in preparing the projections is set forth below. See the section entitled Risk Factors on page 17 of this proxy statement/prospectus for a discussion of various factors that could materially affect SCANAs financial condition, results of operations, business, prospects and securities.
The financial forecasts were prepared based on SCANAs managements belief that it was preferable to seek a settlement that offered a comprehensive solution to the outstanding rate and regulatory issues relating to the abandoned NND project in order to resolve those issues rather than pursue an outcome that did not include such a settlement. In light of that context, SCANAs management prepared financial forecasts (taking into account SCANAs managements views on the estimated anticipated effect of the U.S. tax reform enacted on December 22, 2017, referred to as the Tax Cuts and Jobs Act of 2017) under various settlement scenarios, each of which reflect the following material assumptions:
| A compound annual growth rate, which we refer to as CAGR, of revenues for SCANAs gas business from FY2018E through FY2022E as follows: |
| SCE&G: 4.5%; |
| PSNC: 5.7%; and |
| SEMI: 3.1%; and |
| A CAGR of SCANAs Operations and Maintenance growth from FY2018E through FY2022E of approximately 0.3%. |
The specific regulatory settlement scenarios prepared by SCANAs management and focused on by the SCANA board in connection with the proposed transaction were a 5% regulatory settlement scenario and a 9.75% regulatory settlement scenario, which scenarios SCANA directed Morgan Stanley and RBC Capital Markets to use and rely upon for purposes of their respective financial analyses and opinions in connection with the proposed transaction without ascribing any relative weighting, probability or likelihood of success to either scenario. The financial forecasts under the 5% regulatory settlement scenario reflect circumstances under which SCE&G would provide a 5% reduction in electricity rates and an upfront cash refund to customers that would provide a higher benefit to customers than the publicly disclosed 3.5% regulatory settlement scenario (described below). The financial forecasts under the 9.75% regulatory settlement scenario reflect circumstances under which SCE&G would provide the largest reduction in electricity rates it could on a stand-alone basis while still maintaining an investment-grade credit rating for SCANA. The following are the material assumptions for the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario:
| 5% regulatory settlement scenario: |
| SCE&G reduces its retail electricity rates by 5% from current levels, an aggregate discount of approximately $125 million per year; |
| SCE&G writes-off approximately $697 million in assets; |
| SCE&G provides its electric customers a one-time $500 million credit in 2018; |
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| SCANA repurchases approximately $300 million of its shares of common stock through 2022; |
| SCE&G purchases a natural gas-fired power station for approximately $180 million in order to increase electricity generation, for which the acquisition cost will not be recovered from customers and only certain ongoing costs will be recovered in future base and fuel rates; and |
| SCE&G absorbs through existing revenues approximately $3.0 billion in nuclear construction amortization costs over 50 years. |
| 9.75% regulatory settlement scenario: |
| SCE&G reduces its retail electricity rates by 9.75% from current levels, an aggregate discount of approximately $233 million per year; |
| SCE&G writes-off approximately $1.83 billion in assets; |
| SCANA does not repurchase any of its shares of common stock; |
| SCE&G purchases a natural gas fired power station for approximately $180 million in order to increase electricity generation, for which the acquisition cost will not be recovered from customers and only certain ongoing costs will be recovered in future base and fuel rates; and |
| SCE&G absorbs through existing revenues approximately $1.9 billion in nuclear construction amortization costs over 50 years. |
The following is a summary of the financial forecasts prepared by SCANAs management regarding SCANA for the fiscal years ending 2018 through 2022 under each of the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario:
5% Regulatory Settlement Scenario
FY 2018E |
FY 2019E |
FY 2020E |
FY 2021E |
FY 2022E |
||||||||||||||||
(in $ millions, except for per share data) | ||||||||||||||||||||
Revenues |
3,908 | 4,512 | 4,577 | 4,693 | 4,845 | |||||||||||||||
EBITDA |
997 | 1,471 | 1,514 | 1,593 | 1,649 | |||||||||||||||
EBIT |
(324 | ) | 972 | 1,004 | 1,054 | 1,102 | ||||||||||||||
Net Income |
(510 | ) | 480 | 505 | 550 | 594 | ||||||||||||||
Weighted-Average Outstanding Shares |
142.9 | 142.9 | 142.9 | 141.9 | 139.9 | |||||||||||||||
Earnings Per Share |
($ | 3.57 | ) | $ | 3.36 | $ | 3.53 | $ | 3.87 | $ | 4.24 | |||||||||
Normalized Net Income(1) |
537 | 480 | 505 | 550 | 594 | |||||||||||||||
Adjusted Earnings Per Share(1) |
$ | 3.76 | $ | 3.36 | $ | 3.53 | $ | 3.87 | $ | 4.24 | ||||||||||
Dividend Per Share |
2.45 | 2.43 | 2.43 | 2.43 | 2.58 | |||||||||||||||
Capital Expenditures (including Other Investing) |
1,034 | 792 | 876 | 882 | 848 |
(1) | In FY2018E, excludes a net of tax write-off and one-time credit of approximately $1.04 billion in assets with an earnings per share impact of $7.33. |
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9.75% Regulatory Settlement Scenario
FY 2018E |
FY 2019E |
FY 2020E |
FY 2021E |
FY 2022E |
||||||||||||||||
(in $ millions, except for per share data) | ||||||||||||||||||||
Revenues |
4,350 | 4,398 | 4,463 | 4,580 | 4,732 | |||||||||||||||
EBITDA |
1,438 | 1,358 | 1,401 | 1,480 | 1,536 | |||||||||||||||
EBIT |
(1,004 | ) | 890 | 922 | 972 | 1,022 | ||||||||||||||
Net Income |
(1,020 | ) | 418 | 442 | 486 | 531 | ||||||||||||||
Weighted-Average Outstanding Shares |
142.9 | 142.9 | 142.9 | 142.9 | 142.9 | |||||||||||||||
Earnings Per Share |
($ | 7.13 | ) | $ | 2.92 | $ | 3.09 | $ | 3.40 | $ | 3.71 | |||||||||
Normalized Net Income(1) |
510 | 418 | 442 | 486 | 531 | |||||||||||||||
Adjusted Earnings Per Share(1) |
$ | 3.57 | $ | 2.92 | $ | 3.09 | $ | 3.40 | $ | 3.71 | ||||||||||
Dividend Per Share |
2.45 | 2.41 | 2.41 | 2.41 | 2.41 | |||||||||||||||
Capital Expenditures (including Other Investing) |
1,034 | 792 | 876 | 882 | 848 |
(1) | In FY2018E, excludes a net of tax write-off of approximately $1.53 billion in assets with an earnings per share impact of $10.70. |
In addition to the financial forecasts under the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario, SCANAs management prepared and provided to the SCANA board and SCANAs financial advisors for informational purposes financial forecasts under the following scenario, which reflects the following material assumptions:
| 3.5% regulatory settlement scenario: |
| SCE&G reduces its retail electricity rates by 3.5% from current levels, an aggregate discount of approximately $90 million per year; |
| SCE&G writes-off approximately $330 million in assets (which, disregarding the effects of the Tax Cuts and Jobs Act of 2017, equates to a write-off of approximately $811 million in assets); |
| SCANA repurchases approximately $650 million of its shares of common stock through 2022; |
| SCE&G purchases a natural gas fired power station for approximately $180 million in order to increase electricity generation, for which the acquisition cost will not be recovered from customers and only certain ongoing costs will be recovered in future base and fuel rates; and |
| SCE&G absorbs through existing revenues on equity approximately $3.4 billion in nuclear construction amortization costs over 50 years (which, disregarding the effects of the Tax Cuts and Jobs Act of 2017, equates to approximately $2.9 billion in nuclear construction amortization costs over 50 years). |
The terms of the 3.5% regulatory settlement scenario had been publicly proposed by SCANA on November 16, 2017. Based on the reaction from legislators and other stakeholders to the proposal, it quickly became clear that the terms of the 3.5% regulatory settlement scenario, in the view of SCANAs management and the SCANA board, were not an acceptable solution to the rate and regulatory issues relating to the abandoned NND project. Accordingly, SCANA directed Morgan Stanley and RBC Capital Markets not to use and rely upon the financial forecasts under the 3.5% regulatory settlement scenario for purposes of their respective financial analyses and opinions in connection with the proposed transaction.
The financial forecasts under the 3.5% regulatory settlement scenario were provided to Dominion Energy and its advisors in connection with the proposed transaction. The financial forecasts under the 5% regulatory settlement scenario and the 9.75% regulatory settlement scenario were not provided to Dominion Energy or its advisors because, in the view of SCANAs management, such financial forecasts were not relevant to Dominion Energys valuation of SCANA in light of the fact that they reflected scenarios considered by the management of
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SCANA, based on its judgment and the financial resources of SCANA as a standalone company, whereas any regulatory settlement ultimately proposed by Dominion Energy would reflect the judgments and strategy of Dominion Energys management and the financial resources of a much larger company (Dominion Energy) that would include SCANA.
The following is a summary of the financial forecasts prepared by SCANAs management regarding SCANA for the fiscal years ending 2018 through 2022 under the 3.5% regulatory settlement scenario:
3.5% Regulatory Settlement Scenario
FY 2018E |
FY 2019E |
FY 2020E |
FY 2021E |
FY 2022E |
||||||||||||||||
(in $ millions, except for per share data) | ||||||||||||||||||||
Revenues |
4,429 | 4,552 | 4,617 | 4,733 | 4,885 | |||||||||||||||
EBITDA |
1,517 | 1,511 | 1,554 | 1,633 | 1,689 | |||||||||||||||
EBIT |
562 | 1,014 | 1,045 | 1,093 | 1,139 | |||||||||||||||
Net Income |
162 | 513 | 537 | 579 | 621 | |||||||||||||||
Weighted-Average Outstanding Shares |
142.9 | 142.2 | 140.4 | 137.7 | 135.1 | |||||||||||||||
Earnings Per Share |
$ | 1.14 | $ | 3.61 | $ | 3.82 | $ | 4.21 | $ | 4.60 | ||||||||||
Normalized Net Income(1) |
551 | 513 | 537 | 579 | 621 | |||||||||||||||
Adjusted Earnings Per Share(1) |
$ | 3.85 | $ | 3.61 | $ | 3.82 | $ | 4.21 | $ | 4.60 | ||||||||||
Dividend Per Share |
2.48 | 2.51 | 2.66 | 2.89 | 3.13 | |||||||||||||||
Capital Expenditures (including Other Investing) |
1,034 | 792 | 876 | 882 | 848 |
(1) | In FY2018E, excludes a net of tax write-off of approximately $389 million in assets with an earnings per share impact of $2.71. |
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The following summarizes material provisions of the merger agreement, which is attached as Annex A to this proxy statement/prospectus and is incorporated by reference herein. The rights and obligations of the parties are governed by the express terms and conditions of the merger agreement and not by this summary or any other information contained in this proxy statement/prospectus. SCANA shareholders are urged to read the merger agreement carefully and in its entirety as well as this proxy statement/prospectus before making any decisions regarding the merger.
In reviewing the merger agreement, please remember that it is included to provide you with information regarding its terms and is not intended to provide any other factual information about Dominion Energy or SCANA. The merger agreement contains representations and warranties by each of the parties to the merger agreement. These representations and warranties have been made solely for the benefit of the other parties to the merger agreement and:
| may be intended not as statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
| have been qualified by certain confidential disclosures that were made to the other party in connection with the negotiation of the merger agreement, which disclosures are not reflected in the merger agreement; |
| may apply standards of materiality in a way that is different from what may be viewed as material by you or other investors; and |
| information concerning the subject matter of the representations, warranties and covenants may have changed after the date of the merger agreement. |
Accordingly, the representations and warranties and other provisions of the merger agreement should not be read alone, but instead should be read together with the information provided elsewhere in this proxy statement/prospectus and in the documents incorporated by reference herein. See the section entitled Where You Can Find More Information on page 136 of this proxy statement/prospectus.
The merger agreement provides for the merger of Merger Sub with and into SCANA upon the terms and subject to the conditions set forth in the merger agreement and in accordance with the SCBCA. Upon completion of the merger, the separate corporate existence of Merger Sub will cease and SCANA will be the surviving corporation and a wholly owned subsidiary of Dominion Energy.
At the effective time of the merger:
| each share of SCANA common stock issued and outstanding immediately prior to the effective time of the merger (other than cancelled shares), whether represented by a certificate or in non-certificated form and represented by book-entry, will be automatically converted into the right to receive the merger consideration, as may be adjusted in accordance with the immediately following sentence. The merger consideration will be adjusted to reflect the effect of any reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, exchange or readjustment of shares, merger, issuer tender or exchange offer or other similar transaction with respect to the shares of either Dominion Energy common stock or SCANA common stock that occurs between the date of the merger agreement and the effective time of the merger to provide SCANA shareholders the same economic effect as provided under the merger agreement before such change; |
| each performance share award outstanding immediately prior to the effective time of the merger shall fully vest at the target level of performance and shall be cancelled and converted automatically into the right to receive the equity award consideration in respect of each share of SCANA common stock underlying such performance share award; |
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| each restricted stock unit award outstanding immediately prior to the effective time of the merger shall fully vest and shall be cancelled and converted automatically into the right to receive the equity award consideration in respect of each share of SCANA common stock underlying such restricted stock unit; and |
| each deferred unit credited or deemed credited to SCANAs stock ledger under SCANAs Director Compensation and Deferral Plan or Executive Deferred Compensation Plan that is outstanding immediately prior to the effective time of the merger will be automatically converted into a number of deferred unit(s) in respect of shares of Dominion Energy common stock equal to the product of (i) the deferred unit multiplied by (ii) the merger consideration, to be payable pursuant to the terms of the applicable plan. |
Dominion Energy will issue cash in lieu of fractional shares of Dominion Energy common stock in the merger. Each SCANA shareholder who would otherwise be entitled to receive fractional shares of Dominion Energy common stock in the merger (after aggregating all fractional shares of Dominion Energy common stock issuable to such SCANA shareholder) will be entitled to an amount of cash, without interest, rounded to the nearest cent, equal to the product of (i) the amount of such fractional shares of Dominion Energy common stock issuable to such SCANA shareholder and (ii) the average price.
At the effective time of the merger, each cancelled share will cease to be outstanding, will be cancelled without payment of any consideration therefor and shall cease to exist.
At the effective time of the merger, each share of common stock, without par value, of Merger Sub issued and outstanding immediately prior to the effective time of the merger will be automatically converted into and become one (1) share of common stock, without par value, of the surviving corporation, and all such shares together shall constitute the only outstanding shares of capital stock of the surviving corporation.
Amendments to Organizational Documents; Directors and Officers
The restated articles of incorporation of SCANA, as amended, which we refer to collectively as the SCANA charter, as in effect immediately prior to the effective time of the merger will be the articles of incorporation of the surviving corporation until thereafter amended in accordance with the provisions thereof and applicable law, except that no such amendment will be inconsistent with Dominion Energys obligation to honor the provisions regarding exculpation of directors, limitation of liability of directors and officers, advancement of expenses and indemnification contained in SCANAs and its subsidiaries respective organizational documents in existence immediately prior to the effective time of the merger. See the section entitled The Merger AgreementIndemnification and Insurance on page 105 of this proxy statement/prospectus.
The amended and restated bylaws of SCANA, which we refer to as the SCANA bylaws, as in effect immediately prior to the effective time of the merger will be amended as of the effective time of the merger to be in the form of Merger Subs bylaws as of the date of the merger agreement, except with respect to the name of the surviving corporation which shall be SCANA Corporation, and as so amended will be the bylaws of the surviving corporation until thereafter amended in accordance with the provisions thereof and applicable law, except that no such amendment will be inconsistent with Dominion Energys obligation to honor the provisions regarding exculpation of directors, limitation of liability of directors and officers, advancement of expenses and indemnification contained in SCANAs and its subsidiaries respective organizational documents in existence immediately prior to the effective time of the merger. Furthermore, the bylaws of the surviving corporation following the effective time of the merger will include any changes necessary so that such bylaws comply with the provisions in the merger agreement relating to indemnification and insurance coverage for SCANAs directors and officers. See the section entitled The Merger AgreementIndemnification and Insurance on page 105 of this proxy statement/prospectus.
The directors of Merger Sub will be appointed by Dominion Energy pursuant to applicable law to be the directors of the surviving corporation after the effective time of the merger, following the resignation or removal
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of the individuals serving as directors of SCANA prior to the effective time of the merger. Such directors will serve until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the surviving corporations articles of incorporation and bylaws. Dominion Energy intends that the Dominion Energy board will take all necessary action as soon as practicable after the effective time of the merger to appoint a member of either the SCANA board or SCANAs executive management that is mutually agreeable to Dominion Energy and SCANA to serve as a director on the Dominion Energy board.
The officers of SCANA immediately prior to the effective time of the merger will, from and after the effective time of the merger, be the officers of the surviving corporation, until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the surviving corporations articles of incorporation and bylaws.
The closing of the merger will take place on the third (3rd) business day following the day on which all of the conditions to closing (see the section entitled The Merger AgreementConditions to Completion of the Merger on page 88 of this proxy statement/prospectus) have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the closing of the merger, but subject to the satisfaction or waiver of those conditions at the closing), or at such other time and place as SCANA and Dominion Energy may agree in writing.
The merger will become effective at the time when SCANA and Dominion Energy file the articles of merger with respect to the merger with the Secretary of State of the State of South Carolina or at such later time as Dominion Energy and SCANA agree in writing and specify such time in the articles of merger.
Exchange and Payment Procedures
Prior to the effective time of the merger, Dominion Energy will select an exchange agent reasonably acceptable to SCANA, which we refer to as the exchange agent. Dominion Energy will enter into an agreement with the exchange agent in form and substance reasonably acceptable to SCANA pursuant to which the exchange agent will (i) act as agent for the SCANA shareholders in connection with the merger and receive payment and delivery of the merger consideration to which the SCANA shareholders shall become entitled pursuant to the merger agreement and (ii) act as agent for Dominion Energy in transmitting the merger consideration to the SCANA shareholders following the effective time of the merger in accordance with the merger agreement. At or prior to the effective time of the merger, Dominion Energy will deposit or cause to be deposited with the exchange agent, in trust for the benefit of the SCANA shareholders, an amount of shares of Dominion Energy common stock in book-entry form sufficient for the exchange agent to deliver the merger consideration required to be paid and delivered by Dominion Energy pursuant to the merger agreement. Dominion Energy will also deposit or cause to be deposited with the exchange agent from time to time following the effective time of the merger (i) any dividends or other distributions payable pursuant to the merger agreement (as described below in the section entitled The Merger AgreementExchange and Payment Procedures), which we refer to as the dividend payment and (ii) any cash in lieu of fractional shares of Dominion Energy common stock payable pursuant to the merger agreement (see the section entitled The Merger AgreementTerms of the Merger on page 84 of this proxy statement/prospectus), which we refer to as the fractional shares payment.
Promptly after the effective time of the merger (and in any event within three (3) business days thereafter), Dominion Energy will cause the exchange agent to mail or otherwise provide to each person who was, as of immediately prior to the effective time of the merger, a holder of record of shares of SCANA common stock (other than holders of cancelled shares) transmittal materials, including a letter of transmittal, and instructions for effecting the surrender of SCANA common stock to the exchange agent.
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Upon surrender of SCANA stock certificates, or an affidavit of loss in lieu of such SCANA stock certificates along with the posting of a bond, if required by the exchange agent or Dominion Energy, for cancellation, in accordance with the instructions set forth in the transmittal materials, a SCANA shareholder will be entitled to receive the number of shares of Dominion Energy common stock equal to the number of shares of SCANA common stock represented by such SCANA stock certificates (or affidavit of loss in lieu of such SCANA stock certificates) multiplied by the merger consideration (subject to the treatment of fractional shares described in the section entitled The Merger AgreementTerms of the Merger on page 84 of this proxy statement/prospectus) and a cash amount equal to the dividend payment and the fractional shares payment such SCANA shareholder has the right to receive pursuant to the merger agreement. The shares of Dominion Energy common stock issued in exchange for such SCANA stock certificates will be in non-certificated, book-entry form and no interest will be paid or accrued on any cash amount payable upon surrender of such SCANA stock certificates.
Holders of SCANA common stock in book-entry form, which we refer to as book-entry shares, will not be required to obtain and deliver SCANA stock certificates or an executed letter of transmittal to the exchange agent in order to receive the merger consideration that such holder is entitled to receive. Instead, each holder of record of book-entry shares (other than cancelled shares) will be deemed to have surrendered such book-entry shares upon receipt by the exchange agent of an agents message in customary form (or such other evidence, if any, as the exchange agent may reasonably request). Upon the exchange agents receipt of such an agents message, each such holder of book-entry shares will be entitled to receive, and Dominion Energy will cause the exchange agent to pay and deliver as promptly as practicable following the effective time of the merger, to each such holder of book-entry shares, the number of shares of Dominion Energy common stock equal to the number of book-entry shares held by such holder multiplied by the merger consideration (subject to the treatment of fractional shares described in the section entitled The Merger AgreementTerms of the Merger on page 84 of this proxy statement/prospectus) and a cash amount equal to the dividend payment and the fractional shares payment such holder has the right to receive pursuant to the merger agreement. The shares of Dominion Energy common stock issued in exchange for such book-entry shares will be in non-certificated, book-entry form and no interest will be paid or accrued on any cash amount payable upon surrender of such book-entry shares.
At any time after the effective time of the merger, until surrendered or exchanged in the manner contemplated above, each share of SCANA common stock will be deemed to represent only the right to receive, upon such surrender or exchange, the merger consideration, the dividend payment and the fractional shares payment. Dominion Energy is required to pay or cause to be paid all charges and expenses of the exchange agent set forth in the agreement with the exchange agent.
Any merger consideration and any amounts with respect to the aggregate dividend payments and the aggregate fractional share payments deposited with the exchange agent (including the proceeds of any investment thereof) that remain undistributed one (1) year after the effective time of the merger will be delivered to Dominion Energy or the surviving corporation upon demand by Dominion Energy. Thereafter, any holders of shares of SCANA common stock (other than cancelled shares) will be entitled to look only to Dominion Energy and the surviving corporation for payment and delivery of the merger consideration, the dividend payment and the fractional shares payment due upon surrender of their SCANA stock certificates or exchange of their book-entry shares in accordance with the procedures for surrender and exchange set forth above, and Dominion Energy and the surviving corporation will remain liable (subject to applicable abandoned property, escheat or other similar law) for payment of claims for the merger consideration payable upon surrender of such SCANA stock certificates or exchange of such book-entry shares.
From and after the effective time, the stock transfer books of SCANA will be closed and there will be no transfers on the stock transfer books of SCANA of the shares of SCANA common stock that were outstanding immediately prior to the effective time of the merger.
If any SCANA stock certificate has been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming such SCANA stock certificate to be lost, stolen or destroyed and, if required by the
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exchange agent or Dominion Energy, the posting by such person of a bond in a reasonable amount as indemnity against any claim that may be made against it with respect to such SCANA stock certificate, the exchange agent will pay and deliver in exchange for such SCANA stock certificate the merger consideration, the dividend payment and the fractional share payment the holder of such SCANA stock certificate is entitled to pursuant to the merger agreement.
Holders of SCANA common stock will not be entitled to receive any dividends or other distributions on Dominion Energy common stock until the merger is completed and such holders have surrendered (or are deemed to have surrendered) their SCANA common stock in exchange for Dominion Energy common stock in accordance with the instructions included with the letter of transmittal. If Dominion Energy effects any dividend or other distribution on Dominion Energy common stock with a record date after the effective time of the merger and a payment date before a SCANA shareholder surrenders (or is deemed to surrender) their SCANA common stock, such SCANA shareholder will be entitled to receive such dividend or distribution, without interest, with respect to the shares of Dominion Energy common stock to be issued to such SCANA shareholder promptly after the proper surrender (or deemed surrender) of such SCANA shareholders SCANA common stock. If Dominion Energy effects any dividend or other distribution on Dominion Energy common stock with a record date after the effective time of the merger and a payment date after the date a SCANA shareholder surrenders (or is deemed to surrender) their SCANA common stock, such SCANA shareholder will be entitled to receive such dividend or distribution, without interest, with respect to the shares of Dominion Energy common stock that were issued to such SCANA shareholder on the appropriate payment date.
Dominion Energy and the surviving corporation will be entitled to deduct and withhold any applicable taxes from the consideration otherwise payable pursuant to the merger agreement to any holder of shares of SCANA common stock, performance share awards and restricted stock units, and pay over such withheld amount to the appropriate governmental entity. Any amount so withheld will be promptly remitted to the applicable governmental entity and be treated for all purposes under the merger agreement as having been paid to the person in respect of whom such deduction and withholding was made.
The merger consideration and any other payments to be made to SCANA shareholders pursuant to the merger agreement will be adjusted to reflect the effect of any reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, exchange or readjustment of shares, merger, issuer tender or exchange offer, or other similar transaction with respect to the shares of either Dominion Energy common stock or SCANA common stock that occurs between the date of the merger agreement and the effective time of the merger to provide the SCANA shareholders and the holders of performance share awards and restricted stock units the same economic effect as provided under the merger agreement before such change.
Conditions to Completion of the Merger
The obligation of SCANA, Dominion Energy and Merger Sub to effect the merger is subject to the satisfaction or waiver of the following mutual conditions:
| the receipt of the SCANA requisite vote, which we refer to as the shareholder vote condition; |
| the absence of any law, executive order, ruling, judgment, injunction or other order, which we refer to as an order, issued by any federal, state, local, or non-United States government, any court or tribunal of competent jurisdiction, any administrative, regulatory (including any stock exchange) or other governmental or quasi-governmental agency, commission, branch or authority or other governmental entity or body, which we refer to as a governmental entity (except such reference does not include Santee Cooper in its capacity as a commercial counterparty of SCE&G in connection with the NND project), that is in effect and restrains, enjoins, prevents or otherwise prohibits the completion of the merger or makes the completion of the merger illegal, which we refer to as the governmental order condition; |
| the issuance of an order from the FERC authorizing the merger under Section 203 of the FPA; |
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| the expiration or early termination of certain waiting periods under the HSR Act and the related rules and regulations, which provide that certain acquisition transactions may not be completed until required information has been furnished to the DOJ and the FTC; |
| the issuance of an order from the NRC (x) consenting to the indirect transfer of control of NRC License No. NPF-93, Docket No. 52-027 and NRC License No. NPF-94, Docket No. 52-028 (to the extent that either (a) the NRC has not already approved the termination or withdrawal of such licenses or (b) such licenses have not already been transferred to a third party pursuant to an NRC approval) and (y) consenting to the indirect transfer of control of NRC License No. NPF-126, Docket No. 50-395, in each case from SCANA to Dominion Energy, as required by Section 184 of the Atomic Energy Act and the NRCs implementing regulations in 10 CFR 50.80; |
| the issuance by the NCUC of an order authorizing SCANA and Dominion Energy to engage in the business combination transaction contemplated by the merger agreement pursuant to North Carolina General Statutes, or N.C.G.S. § 62-111(a); |
| the issuance of an order from the GPSC of an order approving the indirect change of ownership of SEMI from SCANA to Dominion Energy pursuant to Official Code of Georgia Annotated, or O.C.G.A. § 46-4-25, this condition and the previous four (4) bullet points we refer to collectively as the regulatory approval conditions; |
| the issuance by the SCPSC of an order approving the SCPSC petition (other than the request to make the SCPSC merger determination), unless otherwise consented to by Dominion Energy in its sole discretion, without any (i) material changes to the proposed terms, conditions or undertakings set forth in the cost recovery plan or (ii) significant changes to the economic value of the proposed terms of the cost recovery plan, in each case as reasonably determined by Dominion Energy in good faith, which we refer to as the SCPSC condition; |
| the approval for listing on the NYSE of the shares of Dominion Energy common stock to be issued in connection with the transactions contemplated by the merger agreement, subject to official notice of issuance; and |
| the effectiveness under the Securities Act of the registration statement on Form S-4 of which this proxy statement/prospectus is a part, and there not having been any stop order suspending the effectiveness of such Form S-4 issued or any proceedings for that purpose, which we refer to as the Form S-4 condition. |
The obligation of Dominion Energy and Merger Sub to effect the merger is subject to the satisfaction or waiver of the following additional conditions:
| the representations and warranties of SCANA relating to SCANAs capitalization being true and correct in all respects, except for de minimis inaccuracies, as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date); |
| the representations and warranties of SCANA relating to (i) SCANAs authority to execute and deliver the merger agreement and perform its obligations under the merger agreement and (ii) brokers and advisors fees and commissions owed by SCANA to brokers or other financial advisor(s) in connection with the merger, each being true and correct in all material respects (disregarding all qualifications or limitations as to materiality and words of similar import set forth therein) as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date); |
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| the representations and warranties of SCANA relating to (i) the absence of any changes since January 1, 2017 that has or would be reasonably expected to have, individually or in the aggregate, a material adverse effect on SCANA and its subsidiaries, taken as a whole (which is described in The Merger AgreementMaterial Adverse Effect) and (ii) the SCANA requisite vote being the only vote of the SCANA shareholders required to approve the merger proposal, each being true and correct in all respects as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date); |
| each of the representations and warranties of SCANA other than those referred to in the immediately preceding three bullets being true and correct in all respects (disregarding all qualifications or limitations as to materiality and words of similar import set forth therein) as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date), except where the failure of such representations and warranties to be true and correct has not had or would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on SCANA and its subsidiaries, taken as a whole, which (collectively with the immediately preceding three bullets) we refer to as the SCANA representation condition; |
| performance by SCANA in all material respects of all obligations required to be performed by it under the merger agreement on or prior to the closing date, which we refer to as the SCANA covenant condition; |
| Dominion Energy having received a certificate of the chief executive officer or the chief financial officer of SCANA, certifying that the SCANA representation condition and the SCANA covenant condition have been satisfied; |
| the absence of any regulatory approval or other approval or consent, in each case in connection with the merger, or order of a governmental entity related to any of the foregoing imposing or requiring any undertakings, terms, conditions, liabilities, obligations, commitments or sanctions, or any structural or remedial actions, that constitute a burdensome condition (which is described in The Merger AgreementReasonable Best Efforts to Obtain Regulatory Approvals and which we refer to as the burdensome condition closing condition); |
| the absence of any changes since the date of the merger agreement that have or would be reasonably expected to have, individually or in the aggregate, a material adverse effect on SCANA and its subsidiaries, taken as a whole, which we refer to as the MAE condition; |
| the absence of any order enacted by a governmental entity of competent jurisdiction or any change in law, in each case which imposes any condition that would reasonably be expected to result in (i) a material change to the proposed terms, conditions, or undertakings set forth in the SCPSC petition or (ii) a significant change to the economic value of the proposed terms set forth in the SCPSC petition, in each case as reasonably determined by Dominion Energy in good faith, which we refer to as the change in SCPSC petition condition; |
| the SCPSC shall have made the SCPSC merger determination; and |
| since the date of the merger agreement, there shall not have occurred any (i) substantive change in applicable law or any order with respect to the BLRA, as in effect on the date of the merger agreement, which has or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries or (ii) substantive change in any applicable law or any order with respect to any other laws |
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of the state of South Carolina governing public utilities as contained in Title 58 of the Code of Laws of South Carolina, as in effect on the date of the merger agreement which has or would reasonably be expected to have an adverse effect on SCANA or any of its subsidiaries, which changes we refer to collectively as SC law changes and which condition we refer to as the absence of changes in law condition. |
The obligation of SCANA to effect the merger is subject to the satisfaction or waiver of the following additional conditions:
| the representations and warranties of Dominion Energy and Merger Sub relating to Dominion Energys and Merger Subs capitalization being true and correct in all respects, except for de minimis inaccuracies, as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date); |
| the representations and warranties of Dominion Energy and Merger Sub relating to (i) their authority to execute and deliver the merger agreement and perform their respective obligations under the merger agreement and (ii) brokers and advisors fees and commissions owed by Dominion Energy to brokers or other financial advisor(s) in connection with the merger, each being true and correct in all material respects (disregarding all qualifications or limitations as to materiality and words of similar import set forth therein) as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date); |
| the representations and warranties of Dominion Energy and Merger Sub relating to (i) the absence of any changes since January 1, 2017 that has or would be reasonably expected to have, individually or in the aggregate, a material adverse effect on Dominion Energy and its subsidiaries, taken as a whole (which is described in The Merger AgreementMaterial Adverse Effect) and (ii) the approval of the merger agreement by the sole shareholder of Merger Sub being the only vote or consent of any class of capital stock of Dominion Energy or any of its affiliates necessary for Dominion Energy and Merger Sub to approve the merger agreement and complete the merger and the other transactions contemplated by the merger agreement, each being true and correct in all respects as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date); |
| each of the representations and warranties of Dominion Energy and Merger Sub other than those referred to in the immediately preceding three bullets being true and correct in all respects (disregarding all qualifications or limitations as to materiality and words of similar import set forth therein) as of the date of the merger agreement and as of the closing date of the merger as though made on and as of such date (except for any such representation or warranty that is made as of a specified date (including the date of the merger agreement), in which case such representation or warranty shall be true and correct only as of such specified date), except where the failure of such representations and warranties to be true and correct has not had or would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on Dominion Energy and its subsidiaries, taken as a whole, which (collectively with the immediately preceding three bullets) we refer to as the Dominion Energy representation condition; |
| performance by Dominion Energy and Merger Sub in all material respects of all obligations required to be performed by them under the merger agreement on or prior to the closing date, which we refer to as the Dominion Energy covenant condition; and |
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| SCANA having received a certificate of the chief executive officer or the chief financial officer of Dominion Energy, certifying that the Dominion Energy representation condition and the Dominion Energy covenant condition have been satisfied. |
We cannot be certain when, or if, the conditions to the merger will be satisfied or waived, or that the merger will be completed.
Actions to Obtain Required Shareholder Vote
Subject to the fiduciary duties of the SCANA board, under applicable law, SCANA has agreed to take, in accordance with applicable law and SCANAs organizational documents, all action necessary to call, give notice of, convene and hold the special meeting as promptly as practicable after the Form S-4 (of which this proxy statement/prospectus is a part) is declared effective under the Securities Act. The merger agreement requires the SCANA board to recommend approval of the merger proposal and take all lawful action to solicit and obtain the SCANA requisite vote unless the SCANA board changes its recommendation in accordance with the terms of the merger agreement (see the section entitled The Merger AgreementNon-Solicitation of Alternative Proposals on page 95 of this proxy statement/prospectus). SCANA may, but is not required to, adjourn or postpone the special meeting (i) to the extent necessary to ensure that any necessary supplement or amendment to this proxy statement/prospectus is provided to the SCANA shareholders a reasonable amount of time in advance of the vote on the approval of the merger proposal, (ii) if SCANA reasonably believes it is necessary and advisable to do so in order to solicit additional proxies in order to obtain the SCANA requisite vote, (iii) if, as of the time for which the special meeting is originally scheduled, there are insufficient shares of SCANA common stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the special meeting or (iv) as required by law.
Reasonable Best Efforts to Obtain Regulatory Approvals
Dominion Energy, SCANA and Merger Sub are required under the terms of the merger agreement to (and shall cause their respective subsidiaries to) cooperate and use their respective reasonable best efforts to (i) promptly make any required submissions and filings under applicable law or to governmental entities with respect to the merger and the other transactions contemplated by the merger agreement, (ii) promptly furnish information requested in connection with such submissions and filings to such governmental entities or under such applicable law, (iii) keep the other parties reasonably informed with respect to the status of any such submissions and filings to such governmental entities or under such applicable law, (iv) obtain all consents and permits from any governmental entity or any other person necessary to consummate the transactions contemplated by the merger agreement as soon as practicable and (v) take or cause to be taken all other actions, and do or cause to be done all other things, reasonably necessary to consummate and make effective the merger and the other transactions contemplated by the merger agreement as soon as practicable.
Under the merger agreement, SCANA and Dominion Energy also agreed to use their respective reasonable best efforts to take or cause to be taken all actions consistent with the terms of the merger agreement and the SCPSC petition to obtain the SCPSCs approval of the SCPSC petition as soon as practicable. The material terms of the SCPSC petition agreed to by the parties in the merger agreement include, among other things (i) an aggregate up-front, one-time rate credit totaling $1.3 billion to all customers who are current customers of SCE&G at the effective time of the merger, (ii) a write down of approximately $1.4 billion by SCE&G of its investment in construction work in the NND project, (iii) SCE&G not seeking recovery of approximately $320 million in regulatory assets, (iv) a total estimated reduction of 5% in retail electric customer bills by Dominion Energy and SCE&G resulting from a $575 million refund underwritten by Dominion Energy for amounts previously collected in connection with the NND project and from the impact of federal tax reform passed in December of 2017, (v) an approximately $180 million capital investment in the Columbia Energy Center, a natural gas-fired power plant located in Gaston, South Carolina, will be excluded from rate base and rate recovery, with only certain ongoing costs to be recovered in future base and fuel rates, (vi) a finding by the
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SCPSC that approximately $3.3 billion of invested capital for the NND project is prudent and may be amortized over a 20-year period (without offset or disallowance) and recovered through retail rates, (vii) a ruling by the SCPSC that until the balance of the $3.3 billion is fully recovered, the capital costs of the unrecovered balance shall be reflected in retail rates at a return on common equity of 10.25%, a weighted average cost of debt of 5.85%, and a capital structure consisting of 52.81% equity and 47.19% debt, with these percentages fixed over the 20-year amortization period and (viii) apart from the 5% customer bill reduction mentioned above, that retail electric base rates will remain frozen at current levels until January 1, 2021, except for rate adjustments for fuel and environmental costs, demand side management costs and other rates routinely adjusted on an annual or biannual basis.
Subject to the limitations set forth in the merger agreement and as further described below, Dominion Energy, SCANA and Merger Sub have agreed to promptly take any and all steps necessary to avoid, eliminate or resolve each and every impediment to and obtain all consents under applicable laws that may be required by any governmental entity (including any regulatory clearances with respect to the transactions contemplated by the merger agreement and the SCPSCs approval of the SCPSC petition), so as to enable the parties to consummate the merger and the other transactions contemplated by the merger agreement as soon as practicable, including taking any remedial action (as described in the paragraph that immediately follows). However, any remedial action may, at the discretion of SCANA or Dominion Energy, be conditioned upon completion of the transactions contemplated by the merger agreement.
The merger agreement provides that a remedial action means, with respect to Dominion Energy, SCANA and each of their respective subsidiaries, committing to and effecting, by consent decree, hold separate orders, trust, or otherwise, (i) selling, licensing, holding separate or otherwise disposing of assets or businesses of Dominion Energy or SCANA or any of their respective subsidiaries, (ii) terminating, relinquishing, modifying, or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Dominion Energy or SCANA or any of their respective subsidiaries and (iii) creating any relationships, ventures, contractual rights, obligations or other arrangements of Dominion Energy or SCANA or any of their respective subsidiaries.
Subject to the limitations set forth in the merger agreement, Dominion Energy has agreed to use reasonable best efforts to take or cause to be taken any and all action, including a remedial action, to avoid or resolve as promptly as practicable any legal proceeding challenging any of the transactions contemplated by the merger agreement that seeks, or would reasonably be expected to seek, to prevent, materially impede or materially delay the consummation of such transactions. Dominion Energy, SCANA and Merger Sub have agreed to cooperate with each other and use their respective reasonable best efforts to contest, defend and resist any such proceeding and to have any order that is in effect lifted that prohibits, prevents, delays, interferes with or restricts the completion of the transactions contemplated by the merger agreement as promptly as practicable.
In connection with obtaining any consent, permit or regulatory approval as described in the above paragraphs, Dominion Energy and its affiliates are not required to, and SCANA and its subsidiaries are not required to (unless conditioned on the completion of the merger) and are not permitted to (without Dominion Energys prior written consent), offer or accept, or agree, commit to agree or consent to, any undertakings, terms, conditions, liabilities, obligations, commitments or sanctions (including remedial actions) that constitutes a burdensome condition (as described in the immediately following paragraph).
The merger agreement provides that a burdensome condition means any undertakings, terms, conditions, liabilities, obligations, commitments or sanctions (including remedial actions) that, in the aggregate, would have or would reasonably be expected to have, a material adverse effect on the business, financial condition, assets, liabilities or results of operations of SCANA and its subsidiaries or of Dominion Energy and its subsidiaries, in each case taken as a whole. However, for purposes of determining whether a burdensome condition exists, Dominion Energy and its subsidiaries will be deemed to be a consolidated group of entities of the size and scale of a hypothetical company that is one hundred percent (100%) of the size and scale of SCANA and its
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subsidiaries, taken as a whole as of immediately prior to the effective time of the merger. Notwithstanding the foregoing, any undertakings, terms, conditions, liabilities, obligations, commitments or sanctions relating to implementing, or otherwise arising or resulting from or imposed by, the social commitments (as described below), or any relief or other matters contemplated by the SCPSC petition or the SCPSCs approval of the SCPSC petition, shall not constitute or be taken into account in determining whether a burdensome condition exists.
Under the terms of the merger agreement, none of Dominion Energy and its affiliates are required to, and none of SCANA and its affiliates are required to (unless conditioned on the completion of the merger) and are not permitted to (without Dominion Energys prior written consent), offer or accept, or agree, or commit to agree or consent to, any undertakings, terms, conditions, liabilities, obligations, commitments or sanctions (including remedial actions) that (i) materially change the proposed terms, conditions or undertakings set forth in the SCPSC petition or (ii) significantly change the economic value of the proposed terms set forth in the SCPSC petition, in each case as reasonably determined by Dominion Energy in good faith.
Unless otherwise agreed to by Dominion Energy and SCANA, Dominion Energy, SCANA and/or certain SCANA subsidiaries (as applicable) are required to (i) file the SCPSC petition by January 12, 2018, (ii) file the notification and report form pursuant to the HSR Act within 15 business days after the date the merger agreement is signed, (iii) file an application for FERC approval within 40 business days after the date of the merger agreement, (iv) file an application for NRC approval within 20 business days after the date of the merger agreement, (v) file applications for FCC approvals no later than 90 business days prior to the anticipated closing date of the merger, (vi) file an application for NCUC approval within 15 business days after the date of the merger agreement and (vii) file an application for GPSC approval within 15 business days after the date of the merger agreement.
In furtherance of the foregoing, Dominion Energy, SCANA and/or certain SCANA subsidiaries (as applicable) (i) filed the SCPSC petition on January 12, 2018, (ii) filed an application for GPSC approval on January 19, 2018, (iii) filed an application for NCUC approval on January 24, 2018, and (iv) filed applications for NRC approvals on January 25, 2018. Additionally, each of Dominion Energy and SCANA filed a Notification and Report form pursuant to the HSR Act on January 19, 2018.
On February 1, 2018, the FTC notified Dominion Energy and SCANA that it had granted early termination of the HSR Act waiting period.
Dominion Energy, SCANA and Merger Sub have agreed to, subject to applicable law relating to the exchange of information:
| promptly notify the other parties of (and if in writing, furnish the other parties with copies of) any communication to such person from any third party (other than a representative of any of the parties to the merger agreement or any of their respective subsidiaries) or any governmental entity regarding the filings and submissions made in connection with the transactions contemplated by the merger agreement and permit the other parties to review and discuss in advance (and to consider in good faith any comments made by the others in relation to) any proposed written response to any communication from any third party (other than a representative of any of the parties to the merger agreement or any of their respective subsidiaries) or any governmental entity regarding such filings and submissions; |
| keep the other parties reasonably informed of any developments, meetings or discussions with any third party (other than a representative of any of the parties to the merger agreement or any of their respective subsidiaries) or any governmental entity in respect of any filings, submissions, investigations, or inquiries concerning the transactions contemplated by this agreement; and |
| not independently participate in any meeting or discussion with any third party (other than a representative of any of the parties to the merger agreement or any of their respective subsidiaries) or |
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any governmental entity in respect of any filings, submissions, investigations or inquiries concerning the transactions contemplated by the merger agreement without giving the other party or parties to the merger agreement prior notice of such meeting or discussions to the extent it is reasonably practical to do so and, unless prohibited by such third party or governmental entity or otherwise not reasonably practical, the opportunity to attend or participate. |
Notwithstanding the obligations described in the three (3) immediately preceding bullets, Dominion Energy, SCANA and Merger Sub are (i) permitted to redact any correspondence, filing, submission or communication prior to furnishing it to the other parties to the extent it contains competitively or commercially sensitive information and (ii) not prohibited from independently participating in meetings and discussions with third parties or governmental entities that solely relate to an explanation of the terms of this agreement.
SCANA and its subsidiaries are required, to the extent reasonably practicable, subject to applicable law relating to the exchange of information and except as would be in violation of, or result in a waiver or loss of, the attorney-client privilege or work-product doctrine, to do the following with respect to any material claim, hearing, investigation or proceeding, whether criminal or civil in nature, relating to or arising out of the NND project or the bankruptcy of Westinghouse.
| within 48 hours of receipt, notify Dominion Energy of (and if in writing, furnish Dominion Energy with copies of) any material communication to SCANA or its subsidiaries from any governmental entity related to or arising out of such claim, hearing, investigation or proceeding and permit Dominion Energy to review and discuss in advance (and consider in good faith any comments made by Dominion Energy in relation to) any proposed written response to any material communication from any governmental entity related to or arising out of any such claim, hearing, investigation or proceeding; |
| keep Dominion Energy reasonably informed of any developments, meetings or discussions with any governmental entity related to or arising out of such claim, hearing, investigation or proceeding; and |
| use good faith efforts to give Dominion Energy notice (which notice shall be prior notice to the extent providing prior notice is reasonably practical) of any material meetings or discussions relating to or arising out of such claim, hearing, investigation or proceeding (and consider in good faith any comments or guidance from Dominion Energy in relation to such meeting or discussions) and, if appropriate in SCANAs reasonable judgment, provide Dominion Energy the opportunity to attend or participate in such meetings or discussions. |
Non-Solicitation of Alternative Proposals
The merger agreement provides that neither SCANA nor any of its subsidiaries nor any of their respective directors or officers will, and SCANA will instruct and use its reasonable best efforts to cause its and its subsidiaries employees, investment bankers, attorneys, accountants and other advisors or representatives, which we refer to as representatives, not to, directly or indirectly:
| initiate, solicit or knowingly encourage any acquisition proposal (which is described in the following paragraph) or the making or any inquiry, indication of interest, proposal or offer that constitutes, or could reasonably be expected to lead to an acquisition proposal; |
| engage in, continue or otherwise participate in any discussions or negotiations regarding any inquiry, indication of interest, proposal or offer that constitutes or could reasonably be expected to lead to, an acquisition proposal; |
| furnish or provide any information or data to any third party in connection with any inquiry, indication of interest, proposal or offer that constitutes or could reasonably be expected to lead to, an acquisition proposal; or |
| otherwise knowingly facilitate any effort or attempt with respect to any of the actions contemplated by the three (3) immediately preceding bullets. |
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The merger agreement provides that an acquisition proposal means any bona fide proposal or offer from any third party or group of third parties (other than Dominion Energy, Merger Sub or any of their respective affiliates) relating to (i) any acquisition or purchase directly or indirectly, in a single transaction or series of transactions, of a business that constitutes more than fifteen percent (15%) of the net revenues, net income or consolidated assets of SCANA and its subsidiaries, taken as a whole, or more than fifteen percent (15%) of the total voting power of the equity securities of SCANA, (ii) any tender offer or exchange offer that if completed would result in any third party beneficially owning more than fifteen percent (15%) of the total voting power of the equity securities of SCANA or (iii) any merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, joint venture, partnership, dissolution or similar transaction involving directly or indirectly, in a single transaction or series of transactions, SCANA (or any subsidiaries of SCANA whose business constitutes more than fifteen percent (15%) of the net revenues, net income or consolidated assets of SCANA and its subsidiaries, taken as a whole).
In addition, the merger agreement requires SCANA and its subsidiaries and their respective directors, officers and employees to, and SCANA will instruct and use its reasonable best efforts to cause its and its subsidiaries representatives to, immediately (i) cease and terminate any solicitation, discussions, negotiations or knowing facilitation or encouragement with any third party that may be ongoing with respect to any inquiry, indication of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an acquisition proposal, (ii) terminate any such third partys access to any physical or electronic data rooms and (iii) request that any such third party promptly return or destroy all confidential information concerning SCANA and its subsidiaries previously furnished to such third party by or on behalf of SCANA or any of its subsidiaries, and destroy all analyses and other materials prepared by or on behalf of such third party that contain, reflect or analyze such information, in each case, to the extent required by, and in accordance with the terms of the applicable confidentiality agreement between SCANA and such third party.
Notwithstanding the restrictions described above, prior to the time the SCANA requisite vote is obtained, the SCANA board will be permitted to (i) furnish or provide information (including non-public information or data) regarding, and provide access to, the business, properties, assets, books, records and personnel of, SCANA and its subsidiaries, to a third party making an unsolicited bona fide written acquisition proposal (and shall as promptly as is reasonably practicable make available to Dominion Energy any non-public information concerning SCANA or its subsidiaries that is provided to any such third party pursuant to this clause (i) to the extent not previously made available to Dominion Energy) and (ii) engage in discussions and negotiations with such third party with respect to such acquisition proposal, provided that the SCANA board has determined in good faith, (a) after consultation with SCANAs financial advisors and outside legal counsel, that such acquisition proposal is, or could reasonably be expected to lead to, a superior proposal (which is described in the following paragraph) and (b) after consultation with SCANAs outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the SCANA boards fiduciary duties under applicable law. Furthermore, such acquisition proposal must be unsolicited, bona fide and in writing and must not have resulted from a breach of the non-solicitation restrictions described above. Before SCANA is permitted to take any of the actions described in clauses (i) or (ii) of this paragraph, the third party making such acquisition proposal is required to enter into a confidentiality agreement, which we refer to as an acceptable confidentiality agreement, having provisions with respect to the confidential treatment of SCANAs information that are not materially less favorable to those contained in the confidentiality agreement executed by Dominion Energy and SCANA on October 8, 2017 (as may be amended from time to time).
The merger agreement provides that a superior proposal means any unsolicited bona fide written acquisition proposal relating to any direct or indirect acquisition or purchase of (i) assets that generate more than fifty percent (50%) of the consolidated total revenues or operating income of SCANA and its subsidiaries, taken as a whole, (ii) assets that constitute more than fifty percent (50%) of the consolidated total assets of SCANA and its subsidiaries, taken as a whole or (iii) more than fifty percent (50%) of the total voting power of the equity securities of SCANA, in each case, that the SCANA board determines in good faith after consultation with SCANAs financial advisors and outside legal counsel is more favorable to the SCANA shareholders than the
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merger, taking into account the third party making the acquisition proposal and all legal, financial and regulatory aspects of the acquisition proposal (including the likelihood that such acquisition proposal would be completed in accordance with its terms) and all other relevant circumstances.
The merger agreement also requires that SCANA promptly (but in any event within forty-eight (48) hours) notify Dominion Energy in writing of the receipt of any acquisition proposal or any inquiry or offer that could reasonably be expected to lead to an acquisition proposal, indicating the identity of the third party making such proposal and the material terms and conditions of such proposal or inquiry and providing Dominion Energy with the most current version (if any) of such inquiry or proposal.
The merger agreement also requires that SCANA promptly (but in any event within forty-eight (48) hours) notify Dominion Energy in writing of the receipt of any acquisition proposal or any inquiry or offer that could reasonably be expected to lead to an acquisition proposal, indicating the identity of the third party making such proposal and the material terms and conditions of such proposal or inquiry and providing Dominion Energy with the most current version (if any) of such inquiry or proposal. With respect to any such acquisition proposal, SCANA must keep Dominion Energy reasonably informed, on a prompt basis (but in any event within forty-eight (48) hours) of any changes or modifications to the terms of such acquisition proposal and any communications between SCANA and such third party with respect to any changes or modifications to the terms of any such acquisition proposal.
Except as required by law, SCANA may not terminate, amend, modify, waive or fail to enforce any standstill provisions or similar obligation with respect to any class of equity securities of SCANA or any of its subsidiaries.
Change in SCANA Board Recommendation
The merger agreement requires that, subject to certain exceptions described below, the SCANA board (and each committee thereof) will not (i) withdraw, change, qualify, withhold or modify, or propose to do any of the foregoing, in a manner adverse to Dominion Energy or Merger Sub, the SCANA board recommendation, (ii) adopt, approve or recommend, or propose to adopt, approve or recommend, any acquisition proposal, (iii) fail to recommend against any acquisition proposal subject to Regulation 14D promulgated under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) business days after Dominion Energy requests in writing, (iv) if an acquisition proposal or any material modification thereof is made public or sent to the SCANA shareholders, fail to issue a press release that reaffirms the SCANA board recommendation within ten (10) business days after Dominion Energy requests in writing or (v) agree or resolve to take any action set forth in the foregoing clauses (i) though (iv), which we collectively refer to as a SCANA board adverse recommendation change. The SCANA board may not, subject to certain exceptions described below, authorize, cause or permit SCANA or any of its affiliates to enter into any letter of intent, memorandum of understanding, agreement in principle, definitive agreement or other similar commitment that would reasonably be expected to lead to an acquisition proposal (other than an acceptable confidentiality agreement), which we refer to as an alternative acquisition agreement.
Notwithstanding the general restrictions described above, at any time prior to obtaining the SCANA requisite vote, the SCANA board may make a SCANA board adverse recommendation change under two (2) circumstances:
| the SCANA board (or a duly authorized committee thereof) determines that an acquisition proposal that was not received in violation of the non-solicitation provisions of the merger agreement constitutes a superior proposal and further determines in good faith, and after consultation with SCANAs outside legal counsel, that the failure to make a SCANA board adverse recommendation change in response to the receipt of such superior proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable law; or |
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| an intervening event (which is described in the following paragraph) occurs and in response thereto the SCANA board determines in good faith, after consultation with SCANAs outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable law. |
The merger agreement provides that an intervening event means any material event, development or change in circumstances that materially affects the business, assets or operations of SCANA and its subsidiaries, taken as a whole, that first becomes known to the SCANA board or certain officers of SCANA after the date of the merger agreement but before the SCANA requisite vote is obtained, to the extent that such event, development or change in circumstances was not reasonably foreseeable as of or prior to the date of the merger agreement or which would not reasonably be expected to have become known after reasonable investigation or inquiry as of or prior to the date of the merger agreement; provided, however, that in no event will (i) the receipt, existence or terms of an acquisition proposal or any matter relating thereto or consequence thereof, (ii) any action taken by the parties pursuant to or in compliance with the merger agreement, including any action taken in connection with seeking any regulatory approvals, (iii) any changes in law or the settlement of any lawsuits or proceedings, (iv) changes in the market price or trading volume of SCANA shares or Dominion Energy shares, or SCANA or Dominion Energy or any of their respective subsidiaries meeting or exceeding internal or published projections, forecasts or revenue or earnings predictions for any period, (v) changes in the energy markets or industry or to rates, or (vi) any event, development or change relating solely to Dominion Energy or its affiliates, in each case, constitute an intervening event or be taken into account in determining whether an intervening event has occurred or would reasonably be expected to result.
In each of the two circumstances described above, to make a SCANA board adverse recommendation change (and, solely with respect to a superior proposal, terminate the merger agreement to enter into an alternative acquisition agreement in accordance with the merger agreement), (i) SCANA must provide Dominion Energy with prior written notice of its intent to make such SCANA board adverse recommendation change (or, solely with respect to a superior proposal, terminate the merger agreement) at least four (4) business days prior to the SCANA board taking such action, which notice shall specify the basis for such SCANA board adverse recommendation change (or termination) and include the most current draft of any letter of intent, memorandum of understanding, agreement in principle, definitive agreement or other similar commitment that would reasonably be expected to lead to an acquisition proposal (we refer to such agreement or commitment as an alternative acquisition agreement) and any other material documents with respect to the superior proposal, if applicable, (ii) during such four (4) business day period, if requested by Dominion Energy, SCANA must make its representatives reasonably available to negotiate in good faith with Dominion Energy and its representatives regarding any modifications to the terms and conditions of the merger agreement that Dominion Energy proposes to make, and (iii) at the end of such four (4) business day period, after taking into account any modifications to the terms of the merger agreement proposed by Dominion Energy to SCANA in a written, binding and irrevocable offer, the SCANA board must determine in good faith, (a) after consultation with SCANAs outside legal counsel, that the failure to effect a SCANA board adverse recommendation change would reasonably be expected to be inconsistent with the SCANA boards fiduciary duties under applicable law and (b) in the case of a SCANA board adverse recommendation change with respect to a superior proposal, after consultation with SCANAs outside legal counsel and financial advisors, that such superior proposal still constitutes a superior proposal. In the event of a change in price or material revision or material amendment to the terms of a superior proposal, or a material change to the facts or circumstances relating to an intervening event, SCANA must deliver an additional written notice summarizing such change, revision or amendment and comply anew with the obligations described in this paragraph, except that, in the case of such a new notice, the four (4) business day period referred to above shall instead be deemed to refer to a two (2) business day period. We refer to the obligations set forth in this paragraph as the match right obligations.
Nothing contained in the merger agreement prohibits SCANA or any of its subsidiaries from (i) complying with its disclosure obligations under U.S. federal or state law, (ii) making any stop, look or listen communication to the SCANA shareholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or
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any similar communications to the SCANA shareholders) or (iii) making any other disclosure to its shareholders if the SCANA board determines in good faith after consultation with SCANAs outside legal counsel that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable law.
Termination of the Merger Agreement
The merger agreement may be terminated and the merger may be abandoned at any time prior to the effective time of the merger (subject to certain exceptions and limitations described in the merger agreement), whether before or after (except as set forth below) the SCANA requisite vote is obtained:
| by mutual written consent of Dominion Energy and SCANA; |
| by either Dominion Energy or SCANA: |
| if the merger has not been completed on or before the termination date, provided, however, that the termination date shall be automatically extended to April 2, 2019 if, as of the termination date, any of the governmental order condition, regulatory approval condition or the SCPSC condition has not been satisfied, provided, further, that this termination right will not be available to a party whose breach of its obligations under the merger agreement in any manner that was the principal cause of or resulted in the failure of a condition to any partys obligation to effect the merger, which termination we refer to as a termination date termination; |
| if at the special meeting (or any adjournment or postponement thereof), the SCANA requisite vote is not obtained, which termination we refer to as a SCANA no vote termination; |
| if any order permanently restraining, enjoining, preventing or otherwise prohibiting completion of the merger shall have become final and non-appealable, provided, however, that this termination right will not be available to a party whose breach of its obligations under the merger agreement was the principal cause of such order, which termination we refer to as a legal restraint termination; |
| by SCANA: |
| if the SCANA board has effected a SCANA board adverse recommendation change with respect to a superior proposal and has approved and entered into concurrently with the termination of the merger agreement an alternative acquisition agreement with respect to such superior proposal, provided, however, that such termination will not be effective and SCANA will not be permitted to enter into an alternative acquisition agreement unless (i) SCANA complied with the match right obligations, and (ii) SCANA has paid Dominion the SCANA termination fee (which is described in The Merger AgreementTermination Fees); provided, further, that this termination right will not be available after the SCANA requisite vote shall have been obtained, which termination we refer to as a superior proposal termination; |
| if Dominion Energy or Merger Sub have breached any of their respective representations or warranties or failed to perform any of their respective covenants under the merger agreement and such breach or failure to perform (i) would give rise to the failure of the applicable conditions to SCANAs obligation to complete the merger and (ii) cannot be cured by Dominion Energy or Merger Sub by the termination date, or if capable of being cured, is not cured prior to the earlier of (a) the thirtieth (30th) day after written notice thereof is given by SCANA to Dominion Energy and (b) the third (3rd) business day immediately preceding the termination date, provided, however, that SCANA will not have this termination right if SCANA is then in material breach of the merger agreement, which termination we refer to as a Dominion Energy breach termination; |
| by Dominion Energy: |
| if the SCANA board (or a committee thereof) has effected a SCANA board adverse recommendation change, except that this termination right will not be available after the SCANA |
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requisite vote shall have been obtained, which termination we refer to as a change of recommendation termination; or |
| if SCANA has breached any of its representations or warranties or failed to perform any of its covenants under the merger agreement and such breach or failure to perform (i) would give rise to the failure of the applicable conditions to Dominion Energys and Merger Subs obligation to complete the merger and (ii) cannot be cured by SCANA by the termination date, or if capable of being cured, is not cured prior to the earlier of (a) the thirtieth (30th) day after written notice thereof is given by Dominion Energy to SCANA and (b) the third (3rd) business day immediately preceding the termination date, except that Dominion Energy will not have this termination right if either Dominion Energy or Merger Sub is then in material breach of the merger agreement, which termination we refer to as a SCANA breach termination. |
SCANA will be required to pay Dominion Energy a termination fee equal to $240,000,000 (which we refer to as the SCANA termination fee) if:
| SCANA effects a superior proposal termination; |
| (i) Dominion Energy or SCANA effects a termination date termination or a SCANA no vote termination or Dominion Energy effects a SCANA breach termination, (ii) a bona fide acquisition proposal has been publicly announced or publicly disclosed and has not been withdrawn (a) in the case of a termination date termination or a SCANA breach termination, prior to the date of such termination, and (b) in the case of a SCANA no vote termination, prior to the special meeting, and (iii) thereafter during the twelve-month period immediately following such termination, (a) SCANA enters into an alternative acquisition agreement or (b) an acquisition proposal is completed (except that for the purpose of determining whether SCANA will be required to pay the SCANA termination fee under these circumstances, the references to fifteen percent (15%) in the definition of acquisition proposal in the merger agreement shall be deemed to be references to fifty percent (50%)); or |
| Dominion Energy effects a change of recommendation termination. |
Dominion Energy will be required to pay SCANA a termination fee equal to $280,000,000 (which we refer to as the Dominion Energy termination fee) if:
| Dominion Energy or SCANA effects a termination date termination and, at the time of such termination, (i) the burdensome condition closing condition shall not have been satisfied or waived with respect to a regulatory approval or consent in connection with the merger (other than in connection with South Carolina regulatory approvals), (ii) (a) the governmental order condition, (b) the regulatory approval condition and (c) the SCPSC condition shall each have been satisfied or waived (unless such condition was not satisfied solely due to the proposal of a burdensome condition to which Dominion Energy did not agree) and (iii) each of (a) the shareholder vote condition, (b) the Form S-4 condition, (c) the SCANA representation condition, (d) the SCANA covenant condition and (e) the MAE condition, in each case has been satisfied or waived (except for any such conditions that have not been satisfied as a result of a breach by Dominion Energy or Merger Sub of any of their respective obligations under the merger agreement); |
| Dominion Energy or SCANA effects a legal restraint termination and, at the time of such termination, (i) the burdensome condition closing condition shall not have been satisfied or waived with respect to a regulatory approval or consent in connection with the merger (other than in connection with South Carolina regulatory approvals), (ii) (a) the governmental order condition, (b) regulatory approval condition and (c) the SCPSC condition shall each have been satisfied or waived (unless such condition was not satisfied solely due to the proposal of a burdensome condition to which Dominion Energy did not agree) and (iii) each of (a) the shareholder vote condition, (b) the Form S-4 condition, (c) the |
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SCANA representation condition, (d) the SCANA covenant condition and (e) the MAE condition, in each case has been satisfied or waived (except for any such conditions that have not been satisfied as a result of a breach by Dominion Energy or Merger Sub of any of their respective obligations under the merger agreement); or |
| SCANA effects a Dominion Energy breach termination due to a material breach by Dominion Energy or Merger Sub of their respective obligations to obtain the regulatory approvals and consents in connection with the merger (which are described in The Merger AgreementReasonable Best Efforts to Obtain Regulatory Approvals), which breach has caused the failure of any of the following conditions to completion of the merger from being satisfied: (i) the governmental order condition, (ii) the regulatory approvals condition, (iii) the SCPSC condition, (iv) absence of a burdensome condition, (v) the change in SCPSC petition condition, (vi) the SCPSC merger determination and (vii) the absence of changes in law condition. |
In the event the merger agreement is terminated under circumstances in which SCANA is required to pay the SCANA termination fee or Dominion Energy is required to pay the Dominion Energy termination fee and such termination fee, as applicable, is paid, the payment of such termination fee will be the sole and exclusive remedy of Dominion Energy and Merger Sub against SCANA, or of SCANA against Dominion Energy and Merger Sub, as applicable.
Under the merger agreement, each of SCANA and Dominion Energy has agreed to restrict the conduct of its respective business between the date of the merger agreement and the earlier of the effective time of the merger and the termination of the merger agreement.
In general, SCANA has agreed to, and to cause each of its subsidiaries to, conduct its business in all material respects in the ordinary course consistent with past practice and to use commercially reasonable efforts to preserve substantially intact its current business organizations, maintain adequate and comparable insurance coverage, and preserve its relationships with its employees, counterparties, customers and suppliers and governmental entities with jurisdiction over SCANA and any of its subsidiaries.
In addition, between the date of the merger agreement and the effective time of the merger, SCANA has agreed to various specific restrictions relating to the conduct of its business and the business of its subsidiaries, including restrictions on the following (in each case, subject to Dominion Energys prior written consent, certain exceptions specified in the merger agreement, the related SCANA disclosure materials, which we refer to as the SCANA disclosure letter, or as may be required by applicable law or by a governmental entity):
| declaring or paying dividends or other distributions (other than regular quarterly cash dividends payable in respect of SCANA common stock, not in excess of a certain amount); |
| splitting, combining, subdividing or reclassifying any of its capital stock or issuing any other securities in respect of, in lieu of or in substitution for shares of its capital stock; |
| purchasing, redeeming or otherwise acquiring any of its or its subsidiaries capital stock or securities convertible into or exchangeable or exercisable for any such shares of capital stock; |
| issuing, selling, pledging, disposing or encumbering shares of its capital stock; |
| amending its articles of incorporation or bylaws or the comparable organizational documents of any of its subsidiaries; |
| acquiring (whether by merger, consolidation, purchase of property or assets or otherwise) any corporation, partnership or other business organization or any material assets or interests in any third party with a value in excess of fifty million dollars ($50,000,000) in the aggregate; |
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| selling, licensing, transferring, abandoning or otherwise disposing of any of its properties, rights or assets which are material to SCANA or its subsidiaries taken as a whole or have a value in excess of twenty five million dollars ($25,000,000); |
| incurring indebtedness except for (i) borrowings under existing revolving credit facilities (or replacements thereof on comparable terms, including in regards to maturity) or commercial paper programs in the ordinary course of business, (ii) incurring indebtedness in the ordinary course of business (including interest rate swaps on customary commercial terms consistent with past practice) not in excess of two hundred million dollars ($200,000,000), (iii) redeeming, prepaying, defeasing, cancelling or modifying any indebtedness in the ordinary course of business (including interest rate swaps on customary commercial terms consistent with past practice) not to exceed two hundred million dollars ($200,000,000), (iv) incurring, redeeming, prepaying, defeasing, canceling or modifying any indebtedness among SCANA or any of its subsidiaries, (v) incurring any indebtedness to replace, renew, extend, refinance or refund any existing indebtedness in the same principal amount and upon the maturity of such existing indebtedness and to the extent such existing indebtedness is indebtedness of SCANA, on terms that can be redeemed or prepaid at any time upon payment of the outstanding principal amount plus accrued interest without any make whole or similar prepayment penalty and (vi) providing guarantees and other credit support by SCANA with respect to obligations of any of its subsidiaries; provided, however, that no such indebtedness shall contain any term that would accelerate the payment thereof or require its immediate repayment due to the transactions contemplated by the merger agreement; |
| settling any claim, investigation or proceeding with a governmental entity or third party, in each case, threatened, made or pending against SCANA or any of its subsidiaries which provides injunctive relief which is material to SCANA or any of its subsidiaries or requires payment in excess of ten million dollars ($10,000,000) in the aggregate, other than the settlement of any claims, investigations or proceedings made in the ordinary course of business or for an amount (excluding any amounts covered by insurance) not in excess of the amount reflected or reserved therefor in the most recent financial statements of SCANA; provided, however, that neither SCANA nor any of its subsidiaries are permitted to settle any claim, investigation or proceeding relating to or arising out of (i) the construction (or cessation of the construction), abandonment or disposal of the NND project, (ii) the bankruptcy of Westinghouse (including the settlement agreement entered into with Toshiba Corporation and any contract relating to the proceeds thereof), or (iii) any other aspect of the abandoned NND project (other than (a) the termination of any contract related to the abandoned NND project, so long as such termination results in no additional liability of SCANA or any of its subsidiaries in excess of five million dollars ($5,000,000) in the aggregate, (b) any immaterial amendment of any contract related to the abandoned NND project and (c) after prior notice to Dominion Energy, settling any mechanic liens related to the cessation of construction of the abandoned NND project); |
| making capital expenditures in any fiscal year, except for (i) capital expenditures made in accordance with the capital expenditure plans included in the SCANA disclosure letter in an amount not to exceed fifty million dollars ($50,000,000) in excess of the amounts set forth in such plans during any calendar year, (ii) capital expenditures related to operational emergencies, equipment failures or outages or expenditures that SCANA reasonably determines are then necessary to maintain the safety and integrity of any asset or property in response to any unanticipated or unforeseen and subsequently discovered events, occurrences or developments or (iii) as required by law or a governmental entity; |
| except as required by any SCANA benefit plan or other written agreement in effect on the date of the merger agreement, (i) granting any director or officer any increase in compensation or pay, or award any bonuses or incentive compensation, including in the case of any SCANA officer, any changes associated with promotions or other position changes, regardless of whether such promotions or changes were previously announced, (ii) granting to any current or former director, officer or employee any increase in severance, retention or termination pay, (iii) granting or amending any equity awards, |
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(iv) entering into any new, or modifying any existing, employment or consulting agreement with any current or former director or officer or individual consultant pursuant to which the annual base salary of such individual exceeds two hundred fifty thousand dollars ($250,000) or the term of which exceeds twelve months, (v) establishing or amending in any material respect any material collective bargaining agreement or material benefit plan, (vi) taking any action to accelerate any rights or benefits under any benefit plan, or (vii) hiring or promoting any new officer (other than any officer whose hiring or promotion has been publicly announced, but that has not yet taken effect as of the date of the merger agreement); provided, however, that, other than as set forth in subclause (i), the foregoing shall not restrict SCANA or its subsidiaries from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case, in the ordinary course of business, plans, agreements, benefits and compensation arrangements that have a value that is consistent with its past practice of making compensation and benefits available to newly hired or promoted employees in similar positions under similar circumstances; |
| changing its accounting methods, principles or practices, where such changes would reasonably be expected to be material to SCANA and its subsidiaries, taken as a whole (other than as required by GAAP); |
| (i) making, changing or rescinding any material tax election, any tax accounting period or adopting or changing any material method of tax accounting, (ii) settling any material tax liability or consenting to any material claim or assessment or obtaining any material ruling related to taxes, (iii) filing any amended material tax return or (iv) entering into any material closing agreement relating to taxes; |
| materially amending, modifying, terminating or waiving any material rights under any contract (i) required to be filed by SCANA as a material contract pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, (ii) that provides for indebtedness of SCANA or any of its subsidiaries of more than fifty million dollars ($50,000,000), (iii) that resulted in expenditures, receipts, liabilities, or payments by SCANA or any of its subsidiaries of more than eighty million dollars ($80,000,000) in the 2016 fiscal year or 2017 fiscal year or (iv) that requires SCANA or any of its subsidiaries to incur indebtedness or liabilities, or to make payments or expenditures of more than eighty million dollars ($80,000,000) in any one future fiscal year (in the case of clauses (ii) and (iii), excluding (a) contracts that can be terminated for convenience on less than ninety (90) days notice without material payment or material penalty and (b) any contracts for the supply of natural gas capacity or commodity) (we refer to such contracts as SCANA material contracts), or entering into any contract that if entered into prior to the date of the merger agreement, would have been deemed a SCANA material contract; |
| adopting or entering into a plan of complete or partial liquidation, dissolution, merger (other than the merger), consolidation, restructuring, recapitalization or other reorganization; |
| materially changing or entering into any IT systems or cyber-security contracts that are material to SCANA and its subsidiaries; and |
| authorizing, agreeing or committing to take any of the foregoing actions. |
Other Covenants and Agreements
The merger agreement contains certain additional covenants and agreements between Dominion Energy and SCANA relating to the following matters, among other things:
| cooperation between Dominion Energy and SCANA in preparation of the Form S-4 (of which this proxy statement/prospectus is a part); |
| the delivery of certain comfort letters and tax representation letters by Dominion Energy and SCANA for use in connection with the Form S-4 (of which this proxy statement/prospectus is a part); |
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| cooperation between Dominion Energy and SCANA to obtain all governmental approvals, consents and waiting period expirations required to complete the merger; |
| providing prompt notice to the other parties of any communications received from any governmental entity with respect to the merger or the other transactions contemplated by the merger agreement; |
| promptly taking all steps necessary to avoid, eliminate or resolve each and every impediment to and obtain all consents under applicable law that may be required by any governmental entity so as to enable the parties to contemplate the merger and the other transactions contemplated by the merger agreement as soon as practicable; |
| SCANA providing Dominion Energy with notice of any material communication to SCANA or its subsidiaries from any governmental entity related to or arising out of any material claim, investigation or proceeding related to or arising out of the construction or cessation of the construction of the NND project or the bankruptcy of Westinghouse (including the settlement agreement entered into with Toshiba Corporation and any contract relating to the proceeds thereof) and permitting Dominion Energy to, in certain circumstances, review and discuss in advance any response to such communications or participate in any meetings or discussions related thereto; |
| confidentiality and access by each party to certain information about the other party and its subsidiaries prior to the effective time of the merger; |
| Dominion Energys use of reasonable best efforts to cause Dominion Energy common stock to be issued in connection with the merger to be approved for listing on the NYSE, subject to official notice of issuance, prior to the closing date; |
| making certain public announcements concerning the merger; |
| using reasonable best efforts to take all actions as are necessary to eliminate or minimize the effects of any anti-takeover statutes that may become applicable to the merger; and |
| SCANA providing Dominion Energy with prompt written notice of any proceeding brought by a SCANA shareholder or any other third party against SCANA or its directors or officers arising out of or relating to the merger agreement or the transactions contemplated by the merger agreement and requesting Dominion Energys consent prior to settling any such proceeding. |
Dominion Energy confirms in the merger agreement that, subject to the occurrence of the effective time of the merger, it:
| intends to maintain SCE&Gs corporate headquarters in Cayce, South Carolina; |
| will make a good faith commitment to give SCANAs employees and the employees of SCANAs subsidiaries due and fair consideration for other employment and promotion opportunities within Dominion Energys larger organization, both inside and outside of South Carolina, to the extent any employment positions are re-aligned, reduced or eliminated in the future as a result of the merger; |
| intends that the Dominion Energy board will take all necessary action as soon as practical after the effective time of the merger to appoint a current member of the SCANA Board or SCANAs executive management that is mutually agreement to Dominion Energy and SCANA as a director to serve on the Dominion Energy board; and |
| intends to increase SCANAs historic level of corporate contributions to charities identified by SCANAs leadership by $1,000,000.00 per year for at least five (5) years after the effective time of the merger and to maintain or increase historic levels of community involvement, low income funding and economic development efforts in SCANAs current operating area, each of this commitment and the previous three bullets we refer to as the social commitments. |
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The merger agreement provides that from and after the effective time of the merger, Dominion Energy will indemnify and hold harmless each current and former director and officer of SCANA and its subsidiaries (in each case, when acting in such capacity) for any liabilities for acts or omissions occurring at or prior to the effective time of the merger including any acts or omissions occurring in respect of the transactions contemplated by the merger agreement.
In addition, from and after the effective time of the merger, Dominion Energy will cause the surviving corporation to honor the provisions regarding exculpation of directors, limitation of liability of directors and officers, advancement of expenses and indemnification set forth in the organizational documents of SCANA and its subsidiaries (as in effect on the date of the merger agreement) or certain indemnification contacts existing immediately prior to the effective time of the merger and will not, for a period of three (3) years following the effective time of the merger (as may be extended in certain instances), amended, replace or otherwise modify such provisions.
Dominion Energy is also required to cause the surviving corporation to maintain directors and officers and fiduciary liability insurance policies for at least six (6) years following the effective time of the merger, subject to certain limitations on the amount of premiums payable under such policies. In lieu of such insurance, SCANA may, prior to the completion of the merger, purchase a tail directors and officers liability insurance policy for its current and former directors and officers who are currently covered by the liability insurance coverage currently maintained by SCANA.
The merger agreement provides that, for the period that begins at the effective time of the merger and ends on December 31, 2019 (which we refer to as the continuation period), Dominion Energy shall, or shall cause the surviving corporation to provide, each SCANA non-union employee who is employed immediately prior to the effective time of the merger with (i) annual base compensation that is no less than the annual base compensation provided to the employee immediately prior to the effective time; (ii) annual target cash incentive opportunities that are no less than the annual target cash incentive opportunities provided to the employee immediately prior to the effective time of the merger, subject to satisfaction of performance criteria determined by Dominion Energy (consistent with the form and terms and conditions, including performance criteria, of such awards provided to other similarly situated employees of Dominion Energy, and other terms and conditions of Dominion Energys annual incentive program); (iii) long-term target incentive award opportunities that are no less than the long-term target incentive award opportunities provided to the employee immediately prior to the effective time of the merger (to be provided in such a form, and subject to performance and vesting criteria and other terms and conditions as Dominion Energy shall determine, consistent with the form and terms and conditions, including performance criteria, of such awards provided to other similarly situated employees of Dominion Energy); (iv) employment within a fifty (50)-mile radius from each employees location of employment immediately prior to the effective time and duties and responsibilities similar to what the employee had immediately prior to the effective time of the merger; and (v) other employee benefits that are substantially comparable in the aggregate to the employee benefits provided to the employee immediately prior to the effective time of the merger. Dominion Energy shall, or shall cause the surviving corporation to provide, each SCANA union employee who is employed immediately prior to the effective time of the merger with compensation and benefits and other terms and conditions of employment in accordance with the terms of their collective bargaining agreement or any subsequently adopted collective bargaining agreement.
The merger agreement further provides that, during the continuation period, SCANA employees who are covered under two (2) SCANA severance plans for executives and other key employees in effect prior to the effective time of the merger will be provided with severance benefits no less favorable than the benefits provided under those plans for at least the longer of the continuation period or the change in control protection period
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under those plans. Benefits provided under the SCANA Corporation Supplementary Key Executive Severance Benefits Plan, including potential increases in benefits to be provided to certain executives, are described in more detail in The MergerInterests of SCANAs Directors and Executive Officers in the MergerPayments under the Supplementary Key Executive Severance Benefits Plan. All other SCANA employees who are terminated without good cause during the continuation period will be provided with reasonable outplacement services and severance benefits that are no less favorable than the greater of (i) the severance pay that would be owed pursuant to Dominion Energys severance program in effect as of the date of the merger agreement (notwithstanding any coverage exclusion that would otherwise apply with respect to union employees) or (ii) the employees base salary or base compensation paid on a payroll period by payroll period basis until December 31, 2019.
The merger agreement provides that, during the continuation period or, if later, until all obligations have been satisfied, Dominion Energy will (or will cause the surviving corporation to) assume, honor and continue all of SCANAs employment, severance, retention, termination, deferred compensation, and change in control plans, policies, programs, agreements and arrangements maintained by SCANA as in effect at the effective time of the merger, including with respect to any payments, benefits or rights arising as a result of the transaction, and will not amend or terminate them unless permitted under their terms as in effect at the effective time of the merger or as required by applicable laws; provided that Dominion Energy will not amend certain deferred compensation and severance plans during the continuation period other than as required by applicable laws. Dominion Energy will also (or will cause the surviving corporation to) expressly assume and agree to perform all obligations under the terms of such plans, to the extent required by their terms.
The merger agreement also provides that each SCANA employees service with SCANA and its subsidiaries and predecessors (to the extent such predecessor service was recognized under the comparable SCANA plan) will be treated as service with Dominion Energy and its subsidiaries for eligibility, vesting and level-of-benefit purposes (other than benefit accrual under any defined benefit pension plan or except as would result in a duplication of benefits) under any employee benefit plans maintained by Dominion Energy or its subsidiaries in which SCANA employees are eligible to participate after the closing date of the merger, including vacation, paid time off and severance plans. In addition, Dominion Energy will (or will cause the surviving corporation to) waive any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Dominion Energy, the surviving corporation or its subsidiaries in which SCANA employees and their eligible dependents will be eligible to participate from and after the effective time of the merger, except to the extent not satisfied or waived under the comparable SCANA plan immediately prior to the effective time of the merger. Dominion Energy will (or will cause the surviving corporation to) recognize the dollar amount of all co-payments, deductibles and similar expenses incurred by each SCANA employee (and his or her eligible dependents) during the calendar year or plan year in which the effective time of the merger occurs for purposes of satisfying such years deductible and co-payment limitations under the relevant welfare benefit plans in which they are eligible to participate after the effective time of the merger. For any insured plan, such waivers and crediting of amounts will be subject to the consent of the insurer, which Dominion Energy will use commercially reasonable efforts to obtain.
Representations and Warranties
Mutual Representations and Warranties
The merger agreement contains certain customary representations and warranties by SCANA and Dominion Energy and Merger Sub that are subject, in some cases, to specific exceptions and qualifications contained in the merger agreement, in any form, statement, certification, report or other document filed with or furnished to the SEC since January 1, 2016 and publicly available at least twenty-four (24) hours prior to the date of the merger agreement (excluding, in each case, any disclosures set forth in any risk factor section or in any other section to the extent such disclosures are forward-looking statements or are cautionary, predictive or forward-looking in nature), or in the SCANA disclosure letter and the Dominion Energy disclosure materials (with any item disclosed in any section or subsection of either of the disclosure letters deemed disclosed with respect to any other section or subsection of the merger agreement to which the relevance of such item is reasonably apparent).
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These representations and warranties relate to, among other things:
| organization, good standing and corporate power; |
| subsidiaries; |
| capital structure; |
| corporate authority and approval related to the execution, delivery and performance of the merger agreement; |
| the absence of violations of, or conflicts with, either SCANAs or Dominion Energys, or their respective subsidiaries, governing documents, or governmental orders, applicable law and certain agreements, in each case as a result of entering into and performing under the merger agreement; |
| governmental filings, notices, declarations, registrations, consents, approvals or authorizations required to complete the merger; |
| proper and accurate filings with the SEC since June 30, 2016; |
| accuracy of financial statements; |
| absence of undisclosed liabilities and certain off-balance-sheet arrangements; |
| compliance with disclosure controls and procedures required under the Exchange Act; |
| since January 1, 2017, the absence of any changes, developments, circumstances, effects, events or occurrences that would be expected to have a material adverse effect on SCANA or Dominion Energy and their respective subsidiaries as applicable; |
| since January 1, 2017, SCANA or Dominion Energy, as applicable, have conducted their respective businesses in all material respects in the ordinary course of business consistent with past practice; |
| absence of certain litigation; |
| compliance with applicable laws; |
| certain tax matters; |
| regulatory status and compliance matters; |
| brokers and finders fees payable in connection with the merger; and |
| accuracy of information supplied for the Form S-4 (of which this proxy statement/prospectus is a part). |
Dominion Energy Additional Representations and Warranties
The merger agreement also contains additional representations and warranties by Dominion Energy relating to the following:
| that no vote or consent of Dominion Energys shareholders or of any of Dominion Energys affiliates shareholders, other than the approval of the sole shareholder of Merger Sub, is necessary for Dominion Energy and Merger Sub to approve the merger agreement and complete the merger and the other transactions contemplated by the merger agreement; |
| capitalization and operations of Merger Sub; |
| the ownership of SCANA shares by Dominion Energy, Merger Sub or any of their subsidiaries; and |
| available funds and financial ability to pay all amounts due in respect of the equity award consideration. |
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SCANA Additional Representations and Warranties
The merger agreement also contains additional representations and warranties by SCANA relating to the following:
| the voting requirements of the SCANA shareholders in order for SCANA to approve the merger agreement and approve and complete the merger and the other transactions contemplated by the merger agreement; |
| compliance with applicable permits; |
| employee benefits; |
| labor and employment matters; |
| material contracts; |
| real property; |
| environmental matters; |
| intellectual property, privacy and information technology matters; |
| certain regulatory compliance matters relating to SCANAs existing nuclear operations, including decommissioning thereof, and the construction and abandonment of the NND project; |
| takeover statutes; |
| insurance policies; and |
| receipt by the SCANA board of opinions from SCANAs financial advisors. |
Many of SCANAs and Dominion Energys representations and warranties in the merger agreement are qualified by, among other things,