Exhibit 10 (xxvii)
FORM OF REIMBURSEMENT AGREEMENT
This Reimbursement Agreement is made as of _______________, 2000 by
__________________________________________________, residing at
_______________________, _______________________ (the "Employee") and Dominion
Resources, Inc., (the "Company").
Preliminary Statements
A. The Board of Directors of the Company has established the 2000
Executive Stock Purchase and Loan Program under the Dominion Resources, Inc.
Incentive Compensation Plan (the "Stock Purchase Program"). Under the Stock
Purchase Program, eligible employees of the Company and its parents or
Subsidiaries may borrow money to exercise options to acquire common stock of the
Company ("Common Stock") and receive financing from various lenders for which
Bank One, NA is acting as administrative agent (collectively, the "Lender").
B. The Employee wishes to obtain a loan or loans (collectively, the
"Loan") from the Lender in an aggregate principal amount not in excess of ten
(10) times the Employee's annual salary for the purpose of acquiring Common
Stock under the Stock Purchase Program, paying any income taxes from the
restricted share match under the Stock Purchase Program, and paying any income
taxes from the exercise of related stock options. The promissory note
evidencing the Loan is referred to as the "Note".
C. To induce the Lender to make loans to employees participating in the
Stock Purchase Program, the Company has entered a Facility and Guaranty
Agreement (the "Facility Agreement") dated as of ____________, 1999 among the
Company, the Lender and Bank One, NA, as Agent for the Lender. Under the
Facility Agreement, the Company has guaranteed all loans made to employees by
the Lender pursuant to the Facility Agreement as well as the payment by the
employees of certain related amounts (the "Guaranty"). Each term used and not
otherwise defined shall have the same meaning as in the Facility Agreement, a
copy of which has been provided to the Employee.
D. The Employee wishes to induce the Company to designate Employee as a
loan recipient under the Facility Agreement and thereby facilitate the making of
the Loan (which will be guaranteed by the Company pursuant to the Guaranty).
Accordingly, the Employee has agreed to execute and deliver this Agreement in
favor of the Company under which the Employee will reimburse the Company on
demand for all amounts paid by the Company to the Lender under the Guaranty with
respect to the Loan.
Therefore, the Employee and the Company agree as follows:
Section 1. Absolute and Unconditional Reimbursement Obligation. The
Employee absolutely and unconditionally agrees to reimburse the Company fully
and promptly, upon demand, for all amounts paid by the Company to the Lender
pursuant to the Guaranty with respect to the Loan. The Employee shall also
reimburse the Company for any interest on all such
amounts from the date paid by the Company until repayment by the Employee at
the rate of 8% per annum. However, the Employee shall have no obligation to
reimburse the Company for any Early Payment Fee that becomes due as a result of
the occurrence of a Program Event of Default or other circumstance in which the
Participant is not obligated to pay the Early Payment Fee under the Stock
Purchase Program, or for the Company's payment of interest on behalf of the
Employee under the Stock Purchase Program prior to an Event of Default. This
Agreement shall be a continuing agreement. The liability of the Employee shall
be absolute and unconditional, shall be performed strictly in accordance with
the terms of this Agreement and shall not be affected by reason of: (i) any
assignment, renewal, modification or extension of the Loan or of the Guaranty;
(ii) any modification or waiver of or change in any of the terms, covenants,
conditions or provisions of the Loan or of the Guaranty; (iii) any dealings or
transactions occurring between the Lender and the Company (including without
limitation any amendment of the Facility Agreement) whether or not notice is
given to the Employee; (iv) any default or failure of the Employee fully to
perform any of its obligations, covenants or agreements with respect to the
Loan or as set forth in this Agreement; (v) the invalidity or lack of
enforceability of the Loan or the Guaranty or any provision of them; or
(vi) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, the Employee in respect of the Loan or the Employee in
respect of this Agreement.
Section 2. Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default (as defined below), the Company is
authorized at any time from time to time, without notice to the Employee (any
such notice being expressly waived by the Employee) to set off and apply any and
all amounts owing by the Company to the Employee or any property of the Employee
in the possession of the Company against any and all of the obligations of the
Employee under this Agreement, whether or not the Company shall have made any
demand under this Agreement. This right of setoff includes, without limitation,
base salary (to the extent permitted by law) and bonuses, but excludes any
"margin stock" (as defined in Regulation U of the Board of Governors of the
Federal Reserve System). The Company agrees promptly to notify the Employee
after any setoff and application, but the failure to give notice shall not
affect the validity of the setoff and application. The rights of the Company
under this Section are in addition to the other rights and remedies which the
Company may have. The following events shall constitute an "Event of Default"
under this Agreement: (a) any breach by the Employee of or default by the
Employee under this Agreement; (b) any representation or warranty made, or any
financial or other information provided by, the Employee to the Company, in
connection with this Agreement, shall prove to have been incorrect in any
material respect when made or provided; and (c) the occurrence of any Borrower
Event of Repayment (as defined in the Note).
Section 3. Representations and Warranties. The Employee represents and
warrants to the Company as follows:
(a) The Employee has all right and power to enter into this Agreement,
perform its obligations hereunder and consummate the contemplated
transactions.
(b) This Agreement constitutes a legal, valid and binding obligation of
the Employee, enforceable against the Employee in accordance with its
terms.
-2-
(c) Neither the execution and delivery of this Agreement, nor compliance
by the Employee with the terms hereof, will violate any statute,
regulation or ordinance of any governmental authority or conflict
with, or result in the breach of any term, condition or provision of,
any agreement, contract, order or instrument to which the Employee is
a party or by which his/her assets or properties are bound or
constitute a default (or an event which, with the lapse of time or the
giving of notice or both, would constitute a default) thereunder.
(d) There is not pending or, to the best of the Employee's knowledge,
threatened any suit, claim, action, litigation or proceeding,
administrative or judicial, or any governmental investigation against
the Employee or involving any of his/her properties or assets which
may reasonably be expected to have a material adverse effect on the
Employee's ability to meet his/her obligations under this Agreement.
(e) No representation or warranty of the Employee in or pursuant to this
Agreement, including any financial or other information provided by
the Employee to the Company in connection with the Stock Purchase
Program, contains or will contain any untrue statement of a material
fact, or omits to state, or will omit to state, any material fact
necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading.
Section 4. Covenants of the Employee. The Employee agrees that:
(a) so long as all or any portion of the Loan remains outstanding and
unpaid, or the Guaranty remains in effect, or any amount is owing to
the Company hereunder:
(i) the ratio of the liquidation value of the Liquid Assets (as
defined below) of the Employee to the aggregate amount of
the indebtedness for money borrowed of the Employee (other
than residential mortgage indebtedness) and the credit card
or similar indebtedness of the Employee shall be greater
than or equal to 1.0 to 1.0;
(ii) the Employee shall promptly provide to the Company such information
with respect to the Employee as the Company may from time to time
reasonably request to confirm compliance with (i) and (ii) above
(which information the Company shall keep confidential and make
available only to employees of the Company responsible for
administering the Stock Purchase Program); and
(iii) the Employee shall not voluntarily pre-pay any portion of the Loan
except in the case of (a) the Employee's death; (b) the Employee's
retirement on or after the Employee's early retirement date or
normal retirement date as defined in the Dominion Resources, Inc.
Retirement Plan; (c) the Employee's hardship as defined in the
Stock Purchase Program; (d) the approval of the Company's Chief
Executive Officer or the Company's Organization, Compensation
and Nominating Committee; or (e) the Company's change of control
as defined in the Stock Purchase Program.
-3-
(b) The Employee shall use the proceeds of the Loan solely for the
purposes described in the Note.
For purposes of this Agreement, "Liquid Assets" shall mean all cash,
marketable securities, Common Stock (whether or not purchased with the
proceeds of the Loan), unexercised and vested options of the Employee to
buy Common Stock valued at the excess of market value over the exercise
price, money market funds, other assets of the Employee which can be
readily liquidated within 30 days and net owner-occupied residential real
estate equity if such residential real estate is owned entirely by the
Employee or by the Employee and his/her spouse.
Section 5. Indemnification. The Employee agrees to indemnify, defend and
hold the Company harmless from and against all demands, claims, actions or
causes of action, assessments, losses, damages, liabilities, cost and expenses,
including without limitation, interest, penalties and reasonable attorneys' fees
and expenses asserted against, resulting to, imposed upon or incurred directly
by the Company by reason of or resulting from a breach of any representation,
warranty or covenant of the Employee contained in or made pursuant to this
Agreement.
Section 6. Agreement of the Company. The Company agrees to pay to the
Agent for the account of the Employee any Early Payment Fee payable by the
Employee pursuant to the Note that becomes due as a result of an acceleration of
the Loan as a result of the occurrence of a Program Event of Default. To the
extent that at any time the Employee pays any such Early Payment Fee to the
Agent, the Company shall reimburse the Employee for the amount upon demand.
Section 7. Amendments, Etc. No amendment or waiver of any provision of
this Agreement shall be effective unless it is in writing and signed by the
Company, and any waiver shall be effective only in the specific instance and for
the specific purpose for which given.
Section 8. Waiver of Notice, Etc. The Employee waives promptness,
diligence, notice of acceptance and any other notice with respect to this
Agreement and any requirement that the Company protect, secure, perfect or
insure any security interest or lien or any property subject thereto or exhaust
any right or take any action against any person or entity.
Section 9. Governing Law. This Agreement and the rights and remedies of
the Company and the Employee shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia.
Section 10. Binding Effect. This Agreement shall inure to the benefit of
the Company and its successors and assigns and shall be fully binding upon the
Employee, its heirs, executors and legal or personal representatives.
Section 11. Expenses. The Employee will, upon demand, pay to the Company
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel, which the Company may incur in connection with the
exercise or enforcement of any of the rights of the Company. The Employee shall
also be solely responsible for his/her own cost for accounting, tax, legal and
investment banking advice and other similar services that he/she
-4-
may receive from his/her respective advisors with respect to this Agreement and
the matters contemplated in the Agreement.
Section 12. Taxes. The Employee shall be solely responsible and agrees to
pay any and all taxes applicable with respect to shares purchased or options
exercised pursuant to or in connection with the Stock Purchase Program and
subsequently sold, including but not limited to income taxes, capital gains
taxes or any other tax levied by any relevant taxing authority.
Section 13. Term. This Agreement shall remain in full force and effect
until all obligations of the Employee under the Note and under this Agreement
have been fully performed and the Company has no further actual or contingent
liability to the Lender under the Guaranty with regard to the Loan.
Section 14. Notices. All notices and other communications permitted or
required pursuant to this Agreement shall be in writing and shall be deemed
given when delivered in person, or when deposited in the United States mail,
postage prepaid, as certified mail, return receipt requested, properly addressed
to the party for whom intended at the addresses set forth below, or to such
other address as either party hereto may designate for itself by notice in
accordance herewith to the other:
The Company Treasurer
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
The Employee: ____________________________________
____________________________________
____________________________________
Section 15. Remedies; No Waiver. All of the Company's rights and remedies
under this Agreement are intended to be distinct, separate and cumulative and no
such right or remedy is intended to be to the exclusion of or be a waiver of any
other right or remedy. No delay or omission of the Company to exercise any
right, remedy or power shall impair the same or be construed to be a waiver of
any Event of Default. A waiver of any Event of Default shall not extend to or
affect any subsequent Event of Default, nor shall it impair any right, remedy or
power available to the Company. No single or partial exercise of any right,
remedy or power shall preclude any other or further exercise by the Company;
Section 16. Severability. Any provision of this Agreement that is legally
determined to be unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the unenforceability without
invalidating the remaining provisions, but no unenforceability in any
jurisdiction shall invalidate or render unenforceable the same or any other
provision in any other jurisdiction.
-5-
Section 17. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter and supersedes any
and all other understandings, negotiations, or agreements between the Employee
and the Company about these matters.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
written above.
DOMINION RESOURCES, INC. [EMPLOYEE]
By:_______________________________ By:__________________________
Its:______________________________
-6-
