EXHIBIT 1(ii)
DOMINION RESOURCES, INC.
Preferred Stock
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule I hereto
[Address of Representative]
Ladies and Gentlemen:
Dominion Resources, Inc., a Virginia corporation (the Company), proposes to
issue and sell to the several Underwriters named in Schedule I hereto for whom
you are acting as Representative, _______ shares of its Series __ Preferred
Stock (the Firm Shares). The Company also proposes to issue and sell to the
several Underwriters not more than an additional _______ shares of Preferred
Stock (the Additional Shares) if and to the extent the Representative shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such shares of Preferred Stock granted to the Underwriters in Section I
hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the Shares. The shares of Preferred Stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the Preferred Stock.
1. Underwriters and Representative. The term "Underwriters" as used herein
-------------------------------
shall be deemed to mean the several persons, firms or corporations (including
the Representative hereinafter mentioned) named in Schedule I hereto, and the
term "Representative" as used herein shall be deemed to mean the representative
to whom this Agreement is addressed, who by signing this Agreement represents
that it has been authorized by the other Underwriters to execute this Agreement
on their behalf and to act for them in the manner herein provided. If there
shall be only one person, firm or corporation named in Schedule I hereto, the
term "Underwriters" and the term "Representative" as used herein shall mean that
person, firm or corporation. All obligations of the
Underwriters hereunder are several and not joint. Any action under or in respect
of this Agreement taken by the Representative will be binding upon all the
Underwriters.
2. Representations and Warranties of the Company. The Company represents and
---------------------------------------------
warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-______ on Form S-3 for the
registration of the Shares and certain other securities of the Company under
the Securities Act of 1933, as amended (the Securities Act), heretofore filed
with the Securities and Exchange Commission (the Commission), a copy of which
as so filed has been delivered to you, has become effective. The registration
statement, including all exhibits thereto, as amended through the date hereof,
is hereinafter referred to as the "Registration Statement"; the prospectus
relating to the Shares included in the Registration Statement, which
prospectus is now proposed to be supplemented by a supplement relating to the
Shares to be filed with the Commission under the Securities Act, as so
supplemented, is hereinafter referred to as the "Prospectus". As used herein,
the terms "Registration Statement", "prospectus" and "Prospectus" include all
documents (including any Current Report on Form 8-K) incorporated therein by
reference, and shall include any documents (including any Current Report on
Form 8-K) filed after the date of such Registration Statement, prospectus or
Prospectus and incorporated therein by reference from the date of filing of
such incorporated documents (collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus has
been issued by the Commission and is in effect and no proceedings for that
purpose are pending before or, to the knowledge of the Company, threatened by
the Commission. The Registration Statement and the Prospectus comply in all
material respects with the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended (the Securities Exchange Act), and the rules,
regulations and releases of the Commission thereunder (the Rules and
Regulations) and, on the date hereof, neither the Registration Statement nor
the Prospectus contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and, on the Closing Date, the Registration
Statement and the Prospectus (including any amendments and supplements
thereto) will conform in all respects to the requirements of the Securities
Act and the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, that the foregoing representations and warranties in
this Section (b) shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon information
furnished herein or in writing to the Company by the Underwriters or on the
Underwriters' behalf for use in the Registration Statement or Prospectus; and
provided, further, that the foregoing representations and warranties are given
on the basis that any
-2-
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus or in any
amendment or supplement thereto.
(c) Except as reflected in, or contemplated by, the Registration Statement
and Prospectus, since the respective most recent dates as of which information
is given in the Registration Statement and Prospectus, there has not been any
material adverse change in the condition of the Company, financial or
otherwise.
(d) The execution, delivery and performance of this Agreement and the
issuance and sale of the Shares will not result in a material breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any Significant
Subsidiary (as defined in Rule 1-01(w) of Regulation S-X) or any of their
properties or, to the best of such counsel's knowledge, any agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the properties of the Company is subject, or the articles of
incorporation or bylaws of the Company, and the Company has full power and
authority to authorize, issue and sell the Shares as contemplated by this
Agreement.
(e) All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable, and,the capital stock of each Significant Subsidiary is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, claim, encumbrance or equitable
right.
(f) The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
[(g) The Preferred Stock (other than the Shares) is and, upon issuance
the Shares will be, listed on the New York Stock Exchange. Company will use
best efforts to complete listing of the shares on the New York Stock Exchange]
4. Public Offering. On the basis of the representations and warranties
---------------
herein contained, but subject to the terms and conditions in this Agreement set
forth, the Company agrees to sell to each of the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the place and time hereinafter specified, the number of Shares set forth
opposite the name of such Underwriter in Schedule I hereto at a price of $_____
per share (the "Purchase Price").
-3-
The Company is further advised by the Underwriters that the Shares are to be
offered by the Underwriters to the public initially at $______ a share (the
"Public Offering Price") and to certain dealers selected by the Representatives
at a price that represents a concession not in excess of $__.__ a share under
the Public Offering Price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of $____ a share, to any Underwriter or
to certain other dealers. It is understood that after such initial offering the
several Underwriters reserve the right to vary the offering price and further
reserve the right to withdraw, cancel or modify such offering without notice.
(a) On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, all or part of ________
the Additional Shares at the Purchase Price. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representative may determine)
that bears approximately the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule I
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
(b) The Company hereby agrees that, without the prior written consent of the
Representative, it will not during the period ending 60 days after the date of
the Prospectus (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, or to register or announce the sale or offering of any shares of
Preferred Stock of the Company or any securities convertible into or exercisable
or exchangeable for such Preferred Stock or (ii) enter into any agreement that
transfers, in whole or in part, the economic consequences of ownership of such
Preferred Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of such Preferred Stock or such other
securities in cash or otherwise. The foregoing sentence shall not apply to (a)
the Shares to be sold hereunder; (b) the issuance by the Company of shares of
Preferred Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing.
5. Time and Place of Closing. Payment for the Firm Shares shall be made by
-------------------------
or on behalf of the several Underwriters by the wire transfer of immediately
available funds to the Company's account. Such payment shall be made upon
delivery of the Firm Shares to the Representative or upon its order at the
office of the Representative, [Address], at 10:00 A.M., New York City time, on
the third business day (unless postponed in accordance with the provisions of
Section 10) following the date of this Agreement, or if pricing takes place
after 4:30 P.M. New York time, on the fourth business day following the date of
this Agreement (unless postponed in accordance with
-4-
the provisions of Section 10), or at such other time on the same or such other
earlier date, as shall be agreed upon by the Representative and the Company. The
time and date of such payment are hereinafter referred to as the Closing Date.
Payment for any Additional Shares shall be made by or on behalf of the several
Underwriters by the wire transfer of immediately available funds to the
Company's account. Such payment shall be made upon delivery of the Additional
Shares to the Representative or upon its order at the office of the
Representative, [Address], at 10:00 A.M., New York City time, on such date
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten business days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from the
Representative to the Company of the Representative's determination, on behalf
of the Underwriters, to purchase a number, specified in said notice, of
Additional Shares, or on such other date, in any event not later than ______
200__, as shall be agreed upon by the Representative and the Company. The time
and date of such payment are hereinafter referred to as the Option Closing Date.
The notice of the determination to exercise the option to purchase Additional
Shares and of the Option Closing Date may be given at any time within 30 days
after the date of this Agreement.
Certificates for the Firm Shares and Additional Shares shall be in definitive
form and registered in such names and in such denominations as the
Representative shall request in writing not later than one full business day
prior to the Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and Additional Shares shall be delivered
to the Representative on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
6. Covenants of the Company. The Company agrees that:
------------------------
(a) The Company, at or prior to the Closing Date, will deliver to the
Representative conformed copies of the Registration Statement as originally
filed, including all exhibits, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to each such document, in
each case as soon as available and in such quantities as are reasonably
requested by the Representative.
(b) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus and
the printing of this Agreement, (ii) the preparation, issue and delivery of
certificates for the Shares, (iii) the printing and delivery to the
Underwriters in reasonable quantities of copies of the Registration Statement
and the Prospectus (each as originally filed and as subsequently amended). The
Company also will pay all taxes, if any, except transfer taxes, on the issue
of the Shares. In addition,
-5-
the Company will pay the reasonable out of pocket fees and disbursements of
Underwriters' outside counsel, [Underwriters' Counsel], in connection with the
qualification of the Shares under state securities or blue sky laws or
investment laws (if and to the extent such qualification is required by the
Underwriters or the Company).
(c) If, during the time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will (i) notify the
Representative to suspend solicitation of purchases of the Shares and (ii) at
its expense, prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Shares after the expiration of
the period specified in the preceding sentence, the Company, upon the request
of the Representative, will furnish to the Representative, at the expense of
such Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Prospectus, complying with
Section 10(a) of the Securities Act. During the period specified in the second
sentence of this Section 6(c), the Company will continue to prepare and file
with the Commission on a timely basis all documents or amendments required
under the Securities Exchange Act and the applicable rules and regulations of
the Commission thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof to the
Representative and [Underwriters' Counsel].
(d) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Representative a reasonable opportunity to comment on any
such proposed amendment or supplement; and the Company will also advise the
Representative promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect
of the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon
as possible its lifting, if issued.
(e) The Company will make generally available to its security holders,
as soon as it is practicable to do so, an earnings statement of the Company
(which need not be audited) in reasonable detail, covering a period of at
least 12 months beginning within three months after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be
lawfully required
-6-
and otherwise cooperate in qualifying the Shares for offer and sale under the
securities or blue sky laws of such states as the Representative may
designate; provided, however, that the Company shall not be required in any
state to qualify as a foreign corporation, or to file a general consent to
service of process, or to submit to any requirements which it deems unduly
burdensome.
(g) Fees and disbursements of [Underwriter Counsel]. who are acting as
counsel for the Underwriters (exclusive of fees and disbursements of such
counsel which are to be paid as set forth in Section 6(b)), shall be paid by
the Underwriters; provided, however, that if this Agreement is terminated in
accordance with the provisions of Sections 7 or 8 hereof, the Company shall
reimburse the Representative for the account of the Underwriters for the
amount of such fees and disbursements.
7. Conditions of Underwriters' Obligations; Termination by the Underwriters.
------------------------------------------------------------------------
(a) The obligations of the Underwriters to purchase and pay for the
Shares shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date.
The Representative shall have received, prior to payment for the
Shares, a certificate dated the Closing Date and signed by the
Chairman of the Board, Chief Executive Officer, President or any
Executive or Senior Vice President of the Company to the effect that
no such stop order is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(ii) At the Closing Date an order or orders of the Commission
pursuant to the Holding Company Act permitting the issuance and sale
of the Shares shall be in full force and effect and all provisions of
such order or orders heretofore entered are deemed acceptable to the
Representative and the Company, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Representative and the Company unless within 24 hours after receiving
a copy of any such order either shall give notice to the other to the
effect that such order contains an unacceptable provision.
(iii) At the Closing Date the Representative shall receive, on
behalf of the several Underwriters, the opinions of McGuire, Woods,
Battle & ▇▇▇▇▇▇, LLP, counsel to the Company and [Underwriters'
Counsel], counsel
-7-
to the Underwriters, substantially in the forms attached hereto as
Schedules II and III.
(iv) At the time of execution of this Agreement and as of the
Closing Date, the Representative shall have received letters, on
behalf of the Underwriteres dated as of the date hereof and as of the
Closing Date, in form and substance satisfactory to the
Representative, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' SAS 72 "comfort letters" to underwriters with respect
to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(v) Subsequent to the execution of this Agreement and prior to
the Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, there shall not have
occurred (1) any change in the Shares of the Company (other than a
decrease in the aggregate number thereof outstanding), (2) any
material adverse change in the general affairs, financial condition or
earnings of the Company or (3) any material transaction entered into
by the Company other than a transaction in the ordinary course of
business, the effect of which in each such case in the judgment of the
Representative is so material and so adverse that it makes it
inadvisable to proceed with the public offering or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus
and this Agreement, or (B) there shall not have occurred (1) a
downgrading in the rating accorded any of the Company's senior
securities by any "nationally recognized statistical rating
organization" (as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act), (2) any general
suspension of trading in securities on the New York Stock Exchange or
any limitation on prices for such trading or any restrictions on the
distribution of securities established by the New York Stock Exchange
or by the Commission or by any federal or state agency or by the
decision of any court, (3) a banking moratorium declared either by
federal or New York State authorities or (4) any outbreak or
escalation of major hostilities in which the Unites States is
involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or crisis
resulting in the declaration of a national emergency, the effect of
which outbreak, escalation, declaration, calamity or crisis, in the
reasonable judgment of the Representative, makes it impracticable or
inadvisable to proceed with the public offering or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus
and in this Agreement.
(vi) On the Closing Date, the representations and warranties of
the
-8-
Company in this Agreement shall be true and correct as if made on
and as of such date, and the Company shall have performed all
obligations and satisfied all conditions required of it under this
Agreement; and, at the Closing Date, the Representative shall have
received a certificate to such effect signed by the Chairman of the
Board, Chief Executive Officer, President or any Executive or Senior
Vice President of the Company.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Shares shall have been satisfactory in form
and substance to [Underwriters' Counsel].
(b) In case any of the conditions specified above in Section 7(a)
shall not have been fulfilled, this Agreement may be terminated by the
Representative upon mailing or delivering written notice thereof to the
Company; provided, however, that in case the conditions specified in
Section 7(a)(v) and (vi) shall not have been fulfilled, this Agreement may
not be so terminated by the Representative unless Underwriters who have
agreed to purchase in the aggregate greater than 50% or more of the
aggregate principal amount of the Shares shall have consented to such
termination and the aforesaid notice shall so state. Any such termination
shall be without liability of any party to any other party except as
otherwise provided in Section 9 and Sections 6(b), 6(g) and 7(c) hereof.
(c) If this Agreement shall be terminated by the Representative
pursuant to Section 7(b) above or because of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters, severally, for all out-
of-pocket expenses (in addition to the fees and disbursements of their
outside counsel as provided in Section 6(g)) reasonably incurred by such
Underwriters in connection with this Agreement or the offering
contemplated hereunder and, upon such reimbursement, the Company shall be
absolved from any further liability hereunder, except as provided in
Section 6(b) and Section 9.
(d) The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representative on the
Option Closing Date of such documents and opinions as the Representative
may reasonably request with respect to the good standing of the Company,
the due authorization and issuance of the Additional Shares and other
matters related to the issuance of the Additional Shares.
8. Conditions of the Obligation of the Company. The obligation of the
-------------------------------------------
Company to deliver the Shares shall be subject to the conditions set forth in
the first sentence of Section
-9-
7(a)(i) and in section 7(a)(ii). In case said conditions shall not have been
fulfilled, this Agreement may be terminated by the Company by mailing or
delivering written notice thereof to the Representative. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 6(b), 6(g), 9 and 10(c) hereof.
9. Indemnification. (a) The Company agrees to indemnify and hold harmless
---------------
each Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each such Underwriter and controlling person for any legal or other
expenses (including, to the extent hereinafter provided, reasonable outside
counsel fees) incurred by them in connection with investigating any such losses,
claims, damages, or liabilities, or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or in
either such document as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or any Preliminary Prospectus
(if and when used prior to the effective date of the Registration Statement), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided that the foregoing agreement, insofar as it relates to any Preliminary
Prospectus, shall not inure to the benefit of any Underwriter (or to the benefit
of any person who controls such Underwriter) on account of any losses, claims,
damages or liabilities arising out of the sale of any of the Shares by such
Underwriter to any person if it shall be established that a copy of the
Prospectus, excluding any documents incorporated by reference (as supplemented
or amended, if the Company shall have made any supplements or amendments which
have been furnished to the Representative), shall not have been sent or given by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act, if the misstatement or omission leading to such
loss, claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, and such
correction would have cured the defect giving rise to such loss, claim, damage,
or liability; and provided further, however, that the indemnity agreement
contained in this Section 9(a) shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of or based upon any such
untrue statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon information
furnished herein or otherwise in writing to the Company by or on behalf of any
Underwriter for use in the Registration Statement or any amendment thereto, in
the Prospectus or any supplement thereto, or in any Preliminary Prospectus. The
indemnity agreement of the Company contained in this Section 9(a) and the
representations and warranties of the Company contained in Section 3 hereof
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any such controlling
person, and shall survive the delivery of the Shares.
-10-
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its officers and directors, each other Underwriter, and
each person who controls any thereof within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any Preliminary Prospectus. The indemnity agreement of the respective
Underwriters contained in this Section 9(b) shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Company, or any such other Underwriter or any such controlling person, and shall
survive the delivery of the Shares.
(c) The Company and each of the Underwriters agrees that, upon the receipt of
notice of the commencement of any action against the Company or any of its
officers or directors, or any person controlling the Company, or against such
Underwriter or controlling person as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to notify
such indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants in
any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party (or parties), the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to participate otherwise in
the defense of such action on behalf of such indemnified party. The
indemnifying party shall bear the reasonable fees and expenses of outside
counsel retained by the
-11-
indemnified party if (i) the indemnified party shall have retained such counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, representing the indemnified parties under Section 9(a) or
9(b), as the case may be, who are parties to such action), (ii) the indemnifying
party shall have elected not to assume the defense of such action, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of the action, or (iv) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. Notwithstanding the foregoing sentence, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (such consent not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such a proceeding), unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company, on the one hand, and of the
Underwriters, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations, including
relative benefit. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
you on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
Section 9(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not
-12-
guilty of such fraudulent misrepresentation. The Underwriters' obligations under
this Section 9(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
10. Termination by the Company. If any one or more of the Underwriters shall
--------------------------
fail or refuse to purchase the Shares which it or they have agreed to purchase
hereunder, and the aggregate principal amount of the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Shares, then
the other Underwriters shall be obligated severally in the proportions which the
principal amount of the Shares set forth opposite their respective names in
Schedule I bears to the aggregate underwriting obligations of all non-defaulting
Underwriters, or in such other proportions as the Underwriters may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase. If any Underwriter or Underwriters shall so fail
or refuse to purchase Shares and the aggregate principal amount of the Shares
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of the Shares and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Shares are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter (except as provided in Section 6(g)
and Section 9) or of the Company (except as provided in Section 6(b) and Section
9). In any such case not involving a termination, either the Representative or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this Section 10 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Shares.
12. Miscellaneous. The validity and interpretation of this Agreement shall
-------------
be governed by the laws of the State of New York. This Agreement shall inure to
the benefit of the Company, the Underwriters and, with respect to the provisions
of Section 9 hereof, each controlling person and each officer and director of
the Company referred to in Section 9, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such, of any of the Shares from any of the
several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to the
-------
Underwriters
-13-
shall be mailed, telexed, telecopied or delivered to the Representative at the
address set forth on Schedule I hereto, or if to the Company shall be mailed,
telexed, telecopied or delivered to it, attention of Treasurer, Dominion
Resources, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
-14-
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
DOMINION RESOURCES, INC.
By:
---------------------------------
Title:
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
[Name of Representative]
By:
--------------------------------
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule I hereto.
-15-
SCHEDULE I
--------------------------------------------------------------------------------
Underwriter Number of Firm Shares To Be Purchased
----------- -------------------------------------
--------------------------------------------------------------------------------
------------------------------------------------------------------------------
Total
-16-
SCHEDULE II
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & ▇▇▇▇▇▇ LLP
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
______, 200_
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule I hereto
[Address of Representative]
Re: Dominion Resources Inc. Preferred Stock Offering
Ladies and Gentlemen:
We have acted as counsel to Dominion Resources, Inc., a Virginia
corporation (the "Company"), in connection with the issuance and sale by the
Company of ____ shares (the "Shares") of its preferred stock pursuant to an
underwriting agreement dated ____________, 200__ (the "Underwriting Agreement")
among the Company and ____________ (the "Underwriters"), and the several other
underwriters named therein. This opinion is rendered pursuant to the provisions
of Section 7(a)(iii) of the Underwriting Agreement, and, except a set forth
herein, the terms used herein which are defined in the Underwriting Agreement
have the same meanings as they have in the Underwriting Agreement.
We have examined the Underwriting Agreement, a specimen certificate for the
Preferred stock, the Articles of Incorporation and the By-laws of the Company
and such other corporate records of the Company, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company, and other documents and have conducted such
other investigations of facts and law as we have deemed necessary or advisable
for purposes of this opinion. As to certain facts material to the opinions
expressed herein, we have relied upon the representations and warranties
contained in the documents examined by us. Whenever the phrases "to our
knowledge" or "known to us" are used herein, they refer to the actual knowledge
of the attorneys of this firm generally involved in the representation of the
Company.
To each of the persons on
Schedule I attached hereto
___, 200_
Page 2
For purposes of the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted as certified or photostatic copies
and the authenticity of the originals of such copies, (iii) the genuineness of
signatures not witnessed by us, (iv) the legal capacity of natural persons, and
(v) the due authorization, execution and delivery of all documents by all
parties and the validity and binding effect thereof (other than the
authorization, execution and delivery of documents by the Company, and the
validity and binding effect upon the Company).
Based upon and subject to the foregoing as well as the qualifications
hereinafter set forth, we are of the opinion that:
(A) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Virginia, has the corporate power and authority to own, lease and operate
its property and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement; and is duly
qualified as a foreign corporation in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(B) Each of [Insert Names of Significant Subsidiaries] has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the respective jurisdiction of their organization.
(C) The execution and delivery by the Company of the Underwriting
Agreement and the performance by the Company of its obligations thereunder
have been duly authorized by all necessary corporate action on the part of
the Company; and the Underwriting Agreement has been duly executed and
delivered by the Company.
(D) The Preferred stock of the Company conforms in all material
respects to the description thereof in the Prospectus.
(E) The Shares have been duly authorized and are validly issued,
fully paid and non-assessable. The Shares are not subject to any preemptive
or similar rights. The Shares have been duly authorized for listing on the
New York Stock Exchange (the "NYSE").
(F) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement and the
issuance and sale by the Company of the Shares do not and will not
contravene the Articles of Incorporation or the By-laws of the Company
To each of the persons on
Schedule I attached hereto
___, 200_
Page 3
or any provision of any law of the Commonwealth of Virginia, the State of
New York or U.S. federal law or, to our knowledge, any judgment, order or
decree of any U.S. federal court or government agency or any court or
government agency of the State of New York or the Commonwealth of Virginia
having jurisdiction over the Company. No approval, authorization or consent
of any U.S. federal, New York, or Virginia court or governmental authority
or agency is required in connection with the consummation by the Company of
the transactions contemplated by the Underwriting Agreement, except such as
have been obtained or will have been obtained prior to the Closing Date or
as may be required under state securities laws.
(G) To the best of our knowledge, there are no actions, suits or
proceedings pending or threatened to which the Company is a party or to
which any of its properties is subject other than any proceedings described
in the Prospectus and proceedings which we believe are not likely to have a
material adverse effect on the power or ability of the Company to perform
its obligations under the Underwriting Agreement or to consummate the
transactions contemplated thereby or by the Prospectus.
(H) We have reviewed the Registration Statement and Prospectus and
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company and with your representatives and representatives of your counsel
at which conferences the contents of the Registration Statement and
Prospectus and related matters were discussed and have also reviewed
certain corporate records, documents and proceedings, and, although we are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
(except to the extent set forth in paragraphs (I) below and (D) above), on
the basis of the foregoing, no facts have come to our attention which have
led us to believe that, as of its effective date, the Registration
Statement contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date or the
Closing Date, the Prospectus contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that we express no comment or belief
with respect to the financial statements and schedules and other financial
or statistical information contained in the Registration Statement or
Prospectus).
(I) [The statements in (A) the Prospectus under the captions
"Virginia Stock Corporation Act and the Articles and By-laws" and
"Description of Capital Stock -- Preferred stock," and (B) in the
Registration Statement in Item 15, insofar as such statements constitute a
summary of the legal matters, documents or
To each of the persons on
Schedule I attached hereto
___, 200_
Page 4
proceedings referred to therein, fairly summarize the matters referred to
therein in all material respects (except that we express no comment or
belief with respect to the financial statements and schedules and other
financial or statistical information contained in the Registration
Statement or Prospectus).]
(J) Each of the Registration Statement and the Prospectus, when it
became effective or was filed with the Commission, as the case may be,
appeared on its face to be appropriately responsive in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder (except that we express no comment or belief with
respect to the financial statements and schedules and other financial or
statistical information contained in the Registration Statement or
Prospectus).
(K) The form of the certificate for the Shares conforms in all
material respects to the requirements of the Virginia Stock Corporation Act
and the NYSE.
(L) The Company is not, and following consummation of the
transactions contemplated by the Underwriting Agreement will not be, an
"investment company" or a company "controlled" by an "investment company"
which is required to be registered under the Investment Company Act of
1940, as amended.
(M) [The Company is a registered "holding company" within the meaning
of that term as defined in the Public Utility Holding Company Act of 1935,
as amended.]
We do not purport to express an opinion on any laws other than those of the
Commonwealth of Virginia, the State of New York and the United States of
America. [Underwriters Counsel] may rely on this opinion in connection with the
opinions they are delivering on the date hereof with respect to the matters set
forth herein to the extent that such opinion involves matters governed by the
laws of the Commonwealth of Virginia. Our opinion in paragraph (F) as to non-
contravention of the laws of the State of New York is based upon a review of
those laws and statutes which, in our experience, are normally applicable to
transactions of the type contemplated by the Underwriting Agreement. We do not
express any opinion herein on whether the provisions of the Underwriting
Agreement regarding rights to indemnity and contribution contravene or are
limited by federal or state securities laws or public policy.
This opinion letter may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Very truly yours,
SCHEDULE III
PROPOSED FORM OF OPINION
OF
UNDERWRITER'S COUNSEL
[DATE]
[Name of Underwriter]
as Representative for the
Several Underwriters named
in Schedule I hereto
[Address of Representative]
Re: Dominion Resources Inc.--Offering of _______ Shares
of Preferred Stock
Ladies and Gentlemen:
We have acted as counsel for you (the "Underwriters") in connection with
the purchase today by you severally of _______ shares (the "Shares") of the
preferred stock of Dominion Resources, Inc., a Virginia corporation (the
"Company"), pursuant to the terms of an underwriting agreement dated
____________, 200__ (the "Underwriting Agreement") among the Company and you.
This letter is being delivered to you pursuant to the provisions of Section
7(a)(iii) of the Underwriting Agreement. Terms used in this letter which are not
defined herein but which are defined, either directly or by cross-reference, in
the Underwriting Agreement are used herein with the respective meanings assigned
to such terms in the Underwriting Agreement.
In connection therewith, we have examined (a) the Registration Statement on
Form S-3 (Registration No. _______________ thereto, filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), relating to the registration of the Shares,
as it became effective under the Act (such Registration Statement, as so amended
and including documents incorporated therein by reference, being hereinafter
referred to as the "Registration Statement"), (b) the Company's Prospectus
Supplement, dated ___________, 2000, as filed in final form with the Commission
on ______________, 200_ pursuant to Rule 424(b) under the Act (such Prospectus
Supplement, together with the Prospectus included as part of the Registration
Statement and documents incorporated therein by reference, the "Prospectus", (c)
executed counterparts of the Underwriting
[Underwriter Representative
[Date]
Page 2
Agreement, (d) a copy of the Articles of Incorporation of the Company, (e) a
copy of the By-Laws of the Company, (f) a specimen certificate for the Preferred
Stock and (g) a record of corporate proceedings of the Company relating to the
authorization of the public offering, including the execution and delivery of
the Underwriting Agreement. In addition, we have examined certificates of public
officials and the originals (or copies certified or otherwise identified to our
satisfaction) of such other agreements, certificates, documents and records and
have reviewed such questions of law as we have deemed necessary or appropriate
for the purposes of the opinions rendered herein.
In such examination, we have assumed, without inquiry, the genuineness of
all signatures on all documents examined by us, the authenticity of all
documents submitted to us as originals, the conformity to authentic original
documents of all documents submitted to us as copies and the authenticity of the
originals of such latter documents. In addition, we have assumed, without
inquiry, that the Underwriting Agreement has been duly authorized, executed and
delivered by all parties other than the Company, and that the certificates
representing the Shares being issued on the date hereof conform in all respects
to the specimens examined by us. As to any facts material to our opinion, we
have, when relevant facts were not independently established, relied on the
aforesaid agreements, instruments, certificates, documents and records.
Based on the foregoing, and subject to the qualifications, assumptions and
limitations stated herein, we are of the opinion that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the Commonwealth of Virginia;
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(iii) the Shares have been duly authorized and are validly issued,
fully paid and non-assessable; and
(iv) "The statements in the Prospectus under the captions
"Description of Capital Stock -- Preferred Stock" and "Underwriters,"
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly summarize the matters
referred to therein in all material respects.
As your counsel, we have reviewed the Registration Statement and
Prospectus, participating in discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of the
Registration Statement and Prospectus and related matters were discussed. We
did not participate in the preparation of the Registration Statement (other than
the Prospectus Supplement) or any of the documents (other than the Underwriting
Agreement) incorporated by reference therein. Although we are not passing upon,
and do not assume any responsibility for, the accuracy,
[Underwriter Representative
[Date]
Page 3
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as described in paragraph (iv) hereof),
based on the foregoing, no facts have come to our attention in the course of
such review which have led us to believe that, as of its effective date, the
Registration Statement (other than the financial statements and the financial,
accounting and statistical data and related schedules incorporated by reference
or included therein or excluded therefrom, as to which we express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date or the date hereof, the Prospectus (other
than the financial statements and financial, accounting and statistical data and
related schedules incorporated by reference or included therein or excluded
therefrom, as to which we express no opinion) contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
The opinions rendered herein are limited to the laws of the State of New
York and the Federal law of the United States. In rendering the foregoing
opinions, we have, with your consent, relied solely upon the opinion of McGuire,
Woods, Battle & ▇▇▇▇▇▇ LLP, dated the date hereof and addressed to you, as to
all matters under the laws of the Commonwealth of Virginia, and our opinions
rendered herein as to such matters are subject to the same qualifications,
assumptions and limitations as are set forth in such opinion.
This letter and the opinions rendered herein are furnished by us as counsel
to you in connection with the transactions contemplated by the Underwriting
Agreement and solely for your benefit and may not be delivered to or relied upon
in any manner by any other person or entity without our express written consent.
Very truly yours,
