EXHIBIT 1(i)
DOMINION RESOURCES, INC.
Senior Debt Securities
Series _, ____%, Due __________
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Representative]
Ladies and Gentlemen:
The undersigned, Dominion Resources, Inc. (the Company), hereby confirms its
agreement with the several Underwriters named in Schedule II hereto (the
Agreement) with respect to the sale to the several Underwriters of certain of
its Debt Securities (the Debt Securities) specified in Schedule I hereto, and
the public offering thereof by the several Underwriters, upon the terms
specified in Schedule I hereto.
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 II 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 II 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. Description of the Debt Securities. Schedule I specifies the aggregate
----------------------------------
principal amount of the Debt Securities, the initial public offering price of
the Debt Securities, the purchase price to be paid by the Underwriters, and any
concession from the initial public offering price to be allowed to dealers or
brokers, and sets forth the date, time and manner of delivery of the Debt
Securities and payment therefor. Schedule I also specifies (to the extent not
set forth in the Registration Statement and Prospectus referred to below) the
terms and provisions for the purchase of such Debt Securities. The Debt
Securities will be issued under the Company's Senior Indenture dated as of
_________, ____ between the Company and The Chase Manhattan Bank, N.A., as
Trustee (the Trustee).
3. 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 Debt Securities 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
Debt Securities included in the Registration Statement, which prospectus is
now proposed to be supplemented by a supplement relating to the Debt
Securities 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), the Trust
Indenture Act of 1939, as amended (the Trust Indenture 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
-2-
Registration Statement and the Prospectus (including any amendments and
supplements thereto) will conform in all respects to the requirements of the
Securities Act, the Trust Indenture 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 paragraph (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 or the part of the Registration Statement
which constitutes the Trustee's Statement of Eligibility under the Trust
Indenture Act (the "Form T-1"); and provided, further, that the foregoing
representations and warranties are given on the basis that any 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 the Indenture and
Agreement and the issuance and sale of the Debt Securities and compliance with
the terms and provisions thereof 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, 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 or any
Significant Subsidiary, and the Company has full power and authority to
authorize, issue and sell the Debt Securities 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.
4. Public Offering. On the basis of the representations and warranties
---------------
herein
-3-
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 price, place and time hereinafter specified, the principal amount of the
Debt Securities set forth opposite the name of such Underwriter in Schedule II
hereto. The several Underwriters agree to make a public offering of their
respective Debt Securities specified in Schedule II hereto at the initial public
offering price specified in Schedule I hereto. 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.
5. Time and Place of Closing. Delivery of the Debt Securities to, and
-------------------------
payment therefor by, the Representative for the accounts of the several
Underwriters shall be made at the time, place and date specified in Schedule I
or such other time, place and date as the Representative and the Company may
agree upon in writing, and subject to the provisions of Section 10 hereof. The
hour and date of such delivery and payment are herein called the "Closing Date".
Unless otherwise specified in Schedule I hereto, payment for the Debt Securities
shall be made by wire transfer of immediately available funds to the Company's
account on the Closing Date against delivery of the Debt Securities, in fully
registered form, Cede & Co., as nominee for The Depository Trust Company. The
certificate(s) for the Debt Securities will be made available at the location
specified on Schedule I for examination by the Representatives not later than
12:00 noon, New York time, on the last business day prior to the Closing Date.
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 Debt Securities, (iii) any fees and expenses of the
Trustee and (iv) 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 Debt Securities. In
addition, 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 Debt Securities 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).
-4-
(c) If, during the time when a prospectus relating to the Debt Securities
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 Debt Securities 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 Debt Securities 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, 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 and otherwise cooperate in qualifying the Debt Securities 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
-5-
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 [Underwriters' 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
Debt Securities 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 Debt
Securities, a certificate dated the Closing Date and signed by the
President or any 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 Debt Securities 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 to the Underwriters, substantially in the forms
attached hereto as Schedules III and IV.
-6-
(iv) On the date of this Agreement and on the Closing Date,
the Representative shall have received from Deloitte & Touche LLP a
letter addressed to the Representative, dated the date of this
Agreement and the Closing Date, respectively, (A) confirming that
they are independent public accountants as required by the Securities
Act; (B) stating in effect that, in their opinion, the audited
financial statements included in or incorporated by reference in the
Registration Statement and the Prospectus and audited by them as
stated in their report incorporated by reference in the Registration
Statement (the Audited Financial Statements), comply as to form in
all material respects with the applicable accounting requirements
adopted pursuant to the Securities Exchange Act; (C) stating, in
effect, that on the basis of a reading of the minutes of the meetings
of the Board of Directors of the Company and of committees of the
Board since the end of the period covered by the Audited Financial
Statements, a reading of the unaudited financial statements
incorporated by reference in the Prospectus (if any), of the
unaudited statement of income for any interim period for which
information is included in the Prospectus under the caption "Selected
Financial Information" or any section updating such information, and
of the latest available unaudited financial statements of the Company
covering a period of twelve months ending after the end of the period
covered by the Audited Financial Statements (if any), and inquiries
of officials of the Company responsible for financial and accounting
matters (which procedures did not constitute an audit made in
accordance with generally accepted auditing standards), nothing came
to their attention that caused them to believe that such unaudited
financial statements incorporated by reference in the Prospectus are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the Audited
Financial Statements; and (D) stating, in effect, that on the basis
of more limited procedures than those set forth in the foregoing
clause (C), consisting merely of the reading of the minutes referred
to in said clause and inquiries of officials of the Company
responsible for financial and accounting matters, nothing came to
their attention at a date not more than five business days prior to
the date of such letter that caused them to believe that (1) at such
date there was any decrease in common stockholder's equity or any
increase in funded debt of the Company or any decrease in net assets
as compared with the amounts shown in the balance sheet included in
the most recent financial statements incorporated by reference, or
(2) for the period from the date of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus to a date not more than
five business days prior to the date of such letter there were any
decreases, as compared with the corresponding
-7-
period in the preceding year, in the operating revenues, operating
income or net income, except (with respect to (1) or (2)) in all
instances for changes or decreases that the Registration Statement
discloses have occurred or may occur; provided, however, that said
letters may vary from the requirements specified in clause (D) hereof
in such manner as the Representative in its sole discretion may deem
to be acceptable. Said letters shall also state that the dollar
amounts, percentages and other financial information (in each case to
the extent that such dollar amounts, percentages and other financial
information, either directly or by analysis or computation, are
derived from the general accounting records of the Company) that
appear (1) in the Prospectus under the captions "Selected Financial
Information" and "Other Selected Data" and under any caption
contained in a supplement to the Prospectus updating such dollar
amounts, percentages and other financial information (limited to
total assets and plant expenditures), (2) in the Company's most
recent Annual Report on Form 10-K under the caption "Selected
Financial Data" or (3) in the Registration Statement under the
caption "Ratio of Earnings to Fixed Charges" have been compared with
the general accounting records of the Company and such dollar
amounts, percentages and financial information have been found to be
in agreement with the accounting records of the Company and the
computations have been found to be arithmetically correct. Each such
letter shall relate to the Registration Statement and Prospectus as
amended or supplemented to the date of each such letter.
(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 Debt Securities of the Company (other
than a decrease in the aggregate principal amount 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 Debt Securities 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 the Company's senior unsecured notes 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
-8-
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 Debt Securities 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 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 President or any
Vice President of the Company.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Debt Securities 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
subsections 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 Debt Securities 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
-9-
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.
8. Conditions of the Obligation of the Company. The obligation of the
-------------------------------------------
Company to deliver the Debt Securities shall be subject to the conditions set
forth in the first sentence of Section 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 Debt Securities 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
-10-
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 Debt Securities.
(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 Debt Securities.
(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
-11-
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 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
-12-
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 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 Debt which it or they have agreed to purchase
hereunder, and the aggregate principal amount of the Debt Securities 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 Debt
Securities, then the other Underwriters shall be obligated severally in the
proportions which the principal amount of the Debt Securities set forth opposite
their respective names in Schedule II bears to the aggregate underwriting
obligations of all non-defaulting Underwriters, or in such other proportions as
the Underwriters may specify, to purchase the Debt Securities 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 Debt
Securities and the aggregate principal amount of the Debt Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Debt Securities and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Debt Securities 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 Debt Securities.
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
-13-
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 Debt
Securities from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to the
-------
Underwriters 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 Representation]
By:________________________________
Title:
Acting individually and on
behalf of the other several
Underwriters named in
Schedule II hereto.
15
SCHEDULE I
Title of Debt Securities: 200_, Series _, ____ %, due [date] Debt Securities
Aggregate Principal Amount: $_____________
Initial Price to Public:
% of the principal amount of the Debt Securities plus accrued interest,
if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters:
% of the principal amount of the Debt Securities
Time of Delivery: [Closing Date and time]
Closing Location: [Address]
The Debt Securities will be available for inspection by the
Representative at: [Address]
Address for Notices to the Underwriters:
16
SCHEDULE II
Principal Amount
Underwriter of Debt Securities to be Purchased
----------- ----------------------------------
17
SCHEDULE III
PROPOSED FORM OF OPINION
OF
UNDERWRITER'S COUNSEL
Re: DOMINION RESOURCES, INC.
____ Series ___% Debt Securities,
due ___, 200_
__, 200_
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for
the issuance by Dominion Resources, Inc. (the Company) of up to U.S. $____
aggregate principal amount of its ____ Series ___% Debt Securities, due ___,
200_ (the Debt Securities) under and pursuant to a Senior Indenture, dated as
of ____, 200_ between the Company and The Chase Manhattan Bank, as trustee (the
Trustee), as supplemented by ____ Supplemental Indenture dated as of __, ____
(collectively, the Indenture), and the offering of the Debt Securities by you
pursuant to an Underwriting Agreement dated __, ____ by and between you and the
Company (the Underwriting Agreement). All terms not otherwise defined herein
shall have the meanings set forth in the Underwriting Agreement.
We have examined originals, or copies certified to our satisfaction of
such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed necessary as a basis for the opinions hereinafter expressed. As to
various questions of fact material to such opinions, we have, when relevant
18
facts were not independently established, relied upon certifications by officers
of the Company, the Trustee and other appropriate persons and statements
contained in the Registration Statement hereinafter mentioned. All legal
proceedings taken as of the date hereof in connection with the transactions
contemplated by the Underwriting Agreement have been satisfactory to us.
In addition, we attended the closing held today [Address], at which
the Company satisfied the conditions contained in Section 7 of the Underwriting
Agreement that are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal considerations
that we deem relevant, we are of the opinion that:
A. The Company is a corporation duly incorporated and existing under
the laws of Virginia, and has corporate power to transact its business as
described in the Prospectus.
B. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by the
Company.
C. The Indenture has been duly authorized, executed and delivered by,
and constitutes a valid and binding obligation of, the Company and has been duly
qualified under the Trust Indenture Act, except that we express no opinion as to
the validity or enforceability of any covenant to pay interest on defaulted
interest, and except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
D. The Debt Securities have been duly authorized by the Company and,
when executed by the Company and completed and authenticated by the Trustee in
accordance with the Indenture and delivered and paid for as provided in the
Underwriting Agreement, will have been duly issued under the Indenture and will
constitute valid and binding obligations of the Company entitled to the benefits
provided by the Indenture, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law).
E. The Registration Statement (Reg. No. 333-___) with respect to the
Debt Securities filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of Debt Securities in the manner therein specified.
The Registration Statement and the Prospectus (except the financial
statements incorporated by reference therein, as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act, and to the applicable rules and
regulations of the Commission thereunder.
III-2
As to the statements relating to the Debt Securities under
DESCRIPTION OF THE DEBT SECURITIES in the prospectus initially filed as part of
the Registration Statement, as supplemented by the statements under the
DESCRIPTION OF THE ____ SERIES DEBT SECURITIES in the Prospectus Supplement
dated __, ____ (the Prospectus Supplement), we are of the opinion that the
statements are accurate and do not omit any material fact required to be stated
therein or necessary to make such statements not misleading. As to the
statistical statements in the Registration Statement (which includes the
Incorporated Documents), we have relied solely on the officers of the Company.
As to the other matters, we have not undertaken to determine independently the
accuracy or completeness of the statements contained or incorporated by
reference in the Registration Statement or in the Prospectus. We accordingly
assume no responsibility for the accuracy or completeness of the statements made
in the Registration Statement except as stated above in regard to the above
captions. We note that we were not involved in the preparation of the
Registration Statement or the prospectus initially filed as part thereof, and
that the Incorporated Documents were prepared and filed by the Company without
our participation. We have, however, participated in conferences with counsel
for and representatives of the Company in connection with the preparation of the
Prospectus Supplement, and we have reviewed the Incorporated Documents and such
of the corporate records of the Company as we deemed advisable. None of the
foregoing disclosed to us any information that gives us reason to believe that
the Registration Statement or the Prospectus (except the financial statements
incorporated by reference therein, as to which we express no opinion) contained
on the date the Registration Statement became effective or now contains any
untrue statement of a material fact or omitted on said date or now omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The foregoing opinion is given on the basis
that any 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.
F. An appropriate order of the Securities and Exchange Commission
(the Commission) with respect to the sale of the Debt Securities under the
Public Utility Holding Company Act of 1935, as amended, has been issued, and
such order remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Debt Securities as contemplated by the
Underwriting Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission, is
legally required in connection with the sale of the Debt Securities as
contemplated by the Underwriting Agreement (except to the extent that compliance
with the provisions of securities or blue sky laws of certain states may be
required in connection with the sale of the Debt Securities in such states) and
the carrying out of the provisions of the Underwriting Agreement.
The opinion expressed in paragraph E is given on the basis that any
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.
III-3
Very truly yours,
UNDERWRITER'S COUNSEL
III-4
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIRE, WOODS, BATTLE & ▇▇▇▇▇▇ LLP
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: DOMINION RESOURCES, INC.
____ Series _____% Debt Securities
due ___, 200_
__, ____
[Name of Underwriter]
as Representative for
the Several Underwriters
named in Schedule II hereto
[Address of Underwriter]
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $______ aggregate principal
amount of ____ Series ____% Debt Securities, due ___, 200_ (the Debt
Securities), of Dominion Resources, Inc. (the Company) under a Senior Indenture
dated as of ___, 200_ between the Company and [The Chase Manhattan Bank], as
trustee (the Trustee), as supplemented by a ___ Supplemental Indenture dated as
of __, ____ (collectively, the Indenture), and pursuant to an Underwriting
Agreement dated __, ____, by and between the Company and the Underwriters
listed on Schedule II as attached thereto (the Underwriting Agreement), have
been taken under our supervision as counsel for the Company. Terms not
otherwise defined herein have the meanings set forth in the Underwriting
Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement hereinafter
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Underwriting Agreement have been
satisfactory to us.
On this basis we are of the opinion that:
1. The Company is a corporation duly organized and existing as a
corporation in good standing under the laws of Virginia. Neither the nature of
the Company's business nor the properties it owns or holds under lease makes
necessary qualification as a foreign corporation in any state where it is not
now so qualified or where the failure to be so qualified would have a material
adverse effect on the Company and its subsidiaries taken as a whole, and the
Company has corporate power to conduct its business as described in the
Prospectus and to issue the Debt Securities.
2. Each of [Insert Names of Company's 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.
3. All requisite corporate and governmental authorizations have been given
for the issuance of the Debt Securities under the Indenture.
4. The Underwriting Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by the Company.
5. The Indenture has been duly authorized, executed, and delivered by,
and constitutes a valid and binding obligation of, the Company and has been duly
qualified under the Trust Indenture Act, except that we express no opinion as to
the validity or enforceability of any covenant to pay interest on defaulted
interest, and except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
6. The Debt Securities have been duly authorized by the Company and, when
duly executed by the Company and completed and authenticated by the Trustee in
accordance with, and in the form contemplated by, the Indenture and issued,
delivered and paid for in accordance with the Underwriting Agreement, will have
been duly issued under the Indenture and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
7. The Registration Statement (Reg. No. 333-____) with respect to the Debt
IV-2
[representative]
[date]
Page 3
Securities filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of the Debt Securities in the manner therein specified.
We are of the opinion that the statements relating to the Debt Securities
contained in the prospectus initially filed as part of the Registration
Statement under DESCRIPTION OF THE DEBT SECURITIES AND SUBORDINATED DEBT
SECURITIES, as supplemented by the statements under DESCRIPTION OF THE ____
SERIES __% DEBT SECURITIES in the Prospectus Supplement dated __, ____, are
substantially accurate and fair. As to the statistical statements in the
Registration Statement (which includes the Incorporated Documents), we have
relied solely on the officers of the Company. As to other matters of fact, we
have consulted with officers and other employees of the Company to inform them
of the disclosure requirements of the Securities Act. We have examined various
reports, records, contracts and other documents of the Company and orders and
instruments of public officials, which our investigation led us to deem
pertinent. In addition, we attended the due diligence meetings with
representatives of the Company and the closing at which the Company satisfied
the conditions contained in Section 7 of the Underwriting Agreement. We have
not, however, undertaken to make any independent review of the other records of
the Company. We accordingly assume no responsibility for the accuracy or
completeness of the statements made in the Registration Statement except as
stated above in regard to the aforesaid captions. But such consultation,
examination and attendance disclosed to us no information with respect to such
other matters that gives us reason to believe that the Registration Statement or
the Prospectus contained on the date the Registration Statement became effective
or contains now any untrue statement of a material fact or omitted on said date
or omits now to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. We are of the opinion that the
Registration Statement (excepting the financial statements incorporated therein
by reference, as to which we express no opinion) complies as to form in all
material respects with all legal requirements.
The Registration Statement and the Prospectus (except the financial
statements incorporated by reference therein, as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act, and to the applicable rules and
regulations of the Commission thereunder.
7. 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
-3-
[representative]
[date]
Page 4
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.
8. [An appropriate order of the Securities and Exchange Commission (the
Commission) with respect to the sale of the Debt Securities under the Public
Utility Holding Company Act of 1935, as amended, has been issued, and such order
remains in effect at this date and constitutes valid and sufficient
authorization for the sale of the Debt Securities as contemplated by the
Underwriting Agreement. No approval or consent by any public regulatory body,
other than such order and notification of effectiveness by the Commission, is
legally required in connection with the sale of the Debt Securities as
contemplated by the Underwriting Agreement (except to the extent that compliance
with the provisions of securities or blue sky laws of certain states may be
required in connection with the sale of the Debt Securities in such states) and
the carrying out of the provisions of the Underwriting Agreement.]
Yours very truly,
MCGUIRE, WOODS, BATTLE
& ▇▇▇▇▇▇ LLP
-4-
