Exhibit 1.5
DOMINION RESOURCES, INC.
__________ STOCK PURCHASE UNITS
UNDERWRITING AGREEMENT
(with overallotment option which may be granted in the discretion of Dominion)
[Insert Date]
[Name of Representatives]
as Representative for the Underwriters
listed in Schedule II hereto
[Insert Address of Representative]
Ladies and Gentlemen:
Dominion Resources Inc., a Virginia corporation ("Dominion"), confirms its
agreement with the underwriters named in Schedule II hereto, with respect to the
issue and sale by Dominion and purchase by the Underwriters of ____________
Stock Purchase Unit Securities ("SPUS") specified in Schedule I hereto (the
"Firm SPUS"), and the public offering thereof by the Underwriters under the
terms specified in Schedule I hereto (the "Agreement"). In addition, Dominion
proposes to grant to the Underwriters an option to purchase up to an additional
____________ SPUS on the terms and for the purposes set forth in Section 4 (the
"Option SPUS"). The Firm SPUS and the Option SPUS, if purchased, are hereinafter
collectively called the "SPUS." Capitalized terms used herein without definition
shall be used as defined in the Prospectus (as hereinafter defined).
1. Underwriters and Representative. The term "Underwriters" as used
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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 SPUS. Each SPUS will initially consist of a unit
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(a "Corporate SPUS") comprised of (a) a stock purchase contract (the "Purchase
Contract" and, collectively the "Purchase Contracts"), to be issued under a
Purchase Contract Agreement (the "Purchase Contract
Agreement") between Dominion and ____________________, as the Purchase Contract
Agent (the "Purchase Contract Agent"), under which (i) the holder will purchase
from Dominion no later than _______________, for a price of $___, a number of
shares of common stock, without par value, of Dominion (the "Common Stock"),
equal to the Settlement Rate as set forth in the Purchase Contract Agreement and
(ii) Dominion will pay to the holder contract adjustment payments and (b) a ____
Series _____% Senior Note, due _______________ of Dominion, in the principal
amount of $__ (the "Senior Note", and collectively, the "Senior Notes"). The
holders of the SPUS will pledge the Senior Notes to _______________, as
Collateral Agent (the "Collateral Agent"), pursuant to a Pledge Agreement, to be
entered into among Dominion, the Purchase Contract Agent, the Securities
Intermediary and the Collateral Agent (the "Pledge Agreement"), to secure the
holders' obligations to purchase Common Stock under the Purchase Contracts.
The Senior Notes will be issued under the Company's Senior Indenture dated
as of June 1, 2000, between the Company and The Chase Manhattan Bank, as Trustee
(the "Trustee"), as supplemented, and as further supplemented by a __________
Supplemental Indenture dated as of _______________ (collectively, the
Indenture).
3. Representations and Warranties of Dominion. Dominion represents and
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warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-______ on Form S-3 for the
registration of the SPUS under the Securities Act of 1933, as amended (the
Securities Act), heretofore filed with the Securities and Exchange
Commission (the "Commission"), 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 SPUS included in the Registration Statement,
which prospectus is now proposed to be supplemented by a supplement
relating to the SPUS 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 Dominion,
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 (the "Rules and Regulations") and, neither the
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Registration Statement on the date it was declared effective (the
"Effective Date") nor the Prospectus on the date hereof contained or
contains an untrue statement of a material fact or ommitted or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and, on the Closing Date (as defined
below), the 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 Section 3(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 Dominion by the Underwriters or on the
Underwriters' behalf through the Representative 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; 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 (exclusive of any amendments or supplements after
the date hereof), since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus
(exclusive of any amendments or supplements after the date hereof), there
has not been any material adverse change or event which would result in a
material adverse effect on the condition of Dominion and its subsidiaries
taken as a whole, financial or otherwise (a "Material Adverse Effect").
Dominion and its subsidiaries taken as a whole has no material contingent
financial obligation which is not disclosed in the Registration Statement
and the Prospectus.
(d) Deloitte & Touche LLP, who have certified certain of Dominion's
financial statements filed with the Commission and incorporated by
reference in the Registration Statement, [and PricewaterhouseCoopers LLP,
who have certified certain of Consolidated Natural Gas Company's financial
statements filed with the Commission and incorporated by reference in the
Registration Statement,] are independent public accountants as required by
the Securities Act and the rules and regulations of the Commission
thereunder.
(e) [Virginia Electric and Power Company, Consolidated Natural Gas
Company, Dominion Transmission, Inc. and Dominion Capital, Inc.] are the
only Significant Subsidiaries of the Company as such term is defined in
Rule 1-02 of Regulation S-X (when such Rule is applied to the pro forma
fiscal year ended _______________). 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, [with the exception
of
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the outstanding preferred stock of Virginia Electric and Power Company
which is owned by third parties,] 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 execution, delivery and performance of this Agreement, the
Indenture, the Corporate SPUS, the Purchase Contract Agreement, the Senior
Notes, the Pledge Agreement, and the Remarketing Agreement, and the
consummation of the transactions contemplated in this Agreement, the
Indenture, the Corporate SPUS, the Purchase Contract Agreement, the Senior
Notes, the Pledge Agreement, and the Remarketing Agreement, and in the
Registration Statement (including the issuance and sale of the SPUS and the
use of the proceeds from the sale of the SPUS as described in the
Prospectus under the caption "Use Of Proceeds") and compliance by Dominion
with its obligations under this Agreement, the Indenture, the Corporate
SPUS, the Purchase Contract Agreement, the Senior Notes, the Pledge
Agreement and the Remarketing Agreement, do not and will not, whether with
or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of Dominion or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, to which Dominion or any subsidiary is a party or
by which it or any of them may be bound, or to which any of the property or
assets of Dominion or any subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have
a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or bylaws of Dominion or any subsidiary, or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over Dominion or any subsidiary or any of
their respective properties, assets or operations, and Dominion has full
power and authority to authorize, issue and sell the Corporate SPUS, the
Senior Notes and the Common Stock as contemplated by this Agreement.
(g) The Corporate SPUS have been duly authorized by the Company, and
when duly executed by the Company (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by the Company
and upon payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Purchase Contract Agreement
and enforceable against the Company in accordance with their terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
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(h) The unissued shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, will be duly and
validly issued, fully paid and non-assessable.
(i) Dominion is not, and, after giving effect to the offering and
sale of the SPUS and the application of the proceeds thereof as described
in the Prospectus, 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.
4. Public Offering. On the basis of the representations and warranties
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herein contained, but subject to the terms and conditions in this Agreement set
forth, Dominion agrees to sell to each of the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from Dominion, at the price,
place and time hereinafter specified, the total number of the Firm SPUS set
forth opposite the name of such Underwriter in Schedule II hereto. The
Underwriters agree to make a public offering of their respective Firm SPUS
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.
In addition, Dominion hereby grants to the Underwriters an option to
purchase up to ___________ Option SPUS. Such option is granted solely for the
purpose of covering over-allotments in the sale of the Firm SPUS and is
exercisable as provided herein. Option SPUS shall be purchased severally for
the account of the Underwriters in proportion to the number of Firm SPUS set
forth opposite the name of such Underwriter in Schedule II hereto. The
respective obligations of each Underwriter with respect to the Option SPUS shall
be adjusted by the Representative so that no Underwriter should be obligated to
purchase Option SPUS other than in 100 unit amounts.
The price of both the Firm SPUS and any Option SPUS shall be $___ per SPUS.
Dominion shall not be obligated to deliver any of the SPUS to be delivered
on the First Closing Date (as hereinafter defined) or the Second Closing Date
(as hereinafter defined), as the case may be, except upon payment for all the
SPUS to be purchased on such Closing Date as provided herein.
5. Time and Place of Closing. Delivery of the SPUS to, and payment
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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 Dominion 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 "First Closing Date", or the
"Closing Date" as the context implies. On the First Closing Date, Dominion,
through the facilities of The Depository Trust
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Company ("DTC"), shall deliver or cause to be delivered a securities entitlement
with respect to the Firm SPUS to the Representative for the account of each
Underwriter against payment of the purchase price by wire transfer of same-day
funds to a bank account designated by Dominion. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Firm SPUS shall be registered in the name of Cede & Co., as
nominee for DTC.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 4 may be exercised by written notice
being given to Dominion by the Underwriters. Such notice shall set forth the
aggregate number of Option SPUS as to which the option is being exercised, the
denominations in which the Option SPUS are to be issued and the date and time,
as determined by the Underwriters, when the Option SPUS are to be delivered;
provided, however, that this date and time shall not be earlier than the First
Closing Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The date and time the
Option SPUS are delivered are sometimes referred to as the "Second Closing Date"
and the First Closing Date and the Second Closing Date are sometimes each
referred to as a "Closing Date".
Delivery of and payment for the Option SPUS shall be made at the place
specified pursuant to the first sentence of the first paragraph of this Section
5 (or at such other place as shall be determined by agreement between the
Underwriters and Dominion) at 10:00 A.M., Richmond, Virginia time, on the Second
Closing Date. On the Second Closing Date, Dominion, through the facilities of
DTC, shall deliver or cause to be delivered a securities entitlement with
respect to the Option SPUS to the Representative for the account of each
Underwriter against payment of the purchase price by wire transfer of same-day
funds to a bank account designated by Dominion. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Option SPUS shall be registered in the name of Cede & Co., as
nominee of DTC.
6. Covenants of Dominion. Dominion agrees that:
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(a) If the Representative so requests, Dominion, 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. The Representative will be deemed to have made such a
request for copies for each of the several Underwriters, _______________
and _______________, counsel to the Underwriters, with respect to any such
documents that are not electronically available through the Commission's
XXXXX filing system.
(b) Dominion will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus
and of this Agreement, (ii) the
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preparation, issuance and delivery of the SPUS, (iii) any fees and expenses
of the Trustee, the Purchase Contract Agent, the Securities Intermediary
and the Collateral Agent 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). Dominion also will pay all taxes, if any, on the issuance of the
SPUS. In addition, Dominion will pay the reasonable out of pocket fees and
disbursements of Underwriters' outside counsels, _______________ and
_______________, in connection with the qualification of the SPUS under
state securities or blue sky laws or investment laws (if and to the extent
such qualification is required by the Underwriters or Dominion).
(c) If, during the time when a prospectus relating to the SPUS 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, Dominion promptly will
(i) notify the Representative to suspend solicitation of purchases of the
SPUS 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. During the period specified
above, Dominion 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 Dominion shall not file such documents or
amendments without also furnishing copies thereof to the Representative and
_______________ and _______________. Any such documents or amendments
which are electronically available through the Commission's XXXXX filing
system shall be deemed to have been furnished by the Company to the
Representative and _______________ and _______________.
(d) Dominion 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 Dominion 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) Dominion will make generally available to its security holders,
as soon as it is practicable to do so, an earnings statement of Dominion
(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.
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(f) Dominion will furnish such information as may be lawfully
required and otherwise cooperate in qualifying the SPUS for offer and sale
under the securities or blue sky laws of such states as the Representative
may designate; provided, however, that Dominion 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 _______________ and _______________,
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, Dominion shall reimburse the Representative for the account of
the Underwriters for the amount of such fees and disbursements.
(h) Dominion shall not (i) directly or indirectly, 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 any SPUS, Common Stock or
Purchase Contracts, as the case may be, or any securities of Dominion
similar to the SPUS, or any security convertible into or exercisable or
exchangeable for SPUS, Common Stock or Purchase Contracts or any securities
of Dominion similar to the SPUS, or file any Registration Statement under
the Securities Act with respect to any of the foregoing (other than a shelf
registration statement from which no such securities are offered) or (ii)
enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the SPUS, Common Stock, Purchase Contracts or
any securities of Dominion similar to the SPUS or, any such securities
convertible into or exercisable or exchangeable for such securities,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of SPUS, Common Stock, Purchase Contracts or
such other securities, in cash or otherwise, for a period of 60 days from
the date hereof without the prior written consent of the Representative,
other than (A) pursuant to this Agreement; (B) Treasury SPUS or Corporate
SPUS to be created or recreated upon substitution of pledged securities or
shares of Common Stock issuable upon early settlement of the Corporate SPUS
or Treasury SPUS; (C) any shares of Common Stock issued by Dominion upon
exercise of an option, warrant, or the conversion of a security outstanding
on the date hereof; (D) any shares of Common Stock issued, or options to
purchase such shares granted, pursuant to any employee benefit plans,
employee stock purchase plans, non-employee director stock plans, dividend
reinvestment plans and the Dominion Direct Investment plan; (E) the sale or
surrender to Dominion by any of its Executive Officers or directors of any
options or Common Stock underlying options in order to pay the exercise
price or taxes associated with the exercise of options; (F) any issuance by
Dominion of Common Stock in connection with acquisitions that close more
than 60 days after the date hereof or any acquisition in which the party or
parties receiving the Common Stock agree to be bound by the restrictions of
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this Section 6(h); (G) transactions by any person other than Dominion
relating to Common Stock or other securities acquired in open market
transactions after the completion of the offering of the SPUS; (H)
transfers by any person, other than Dominion, by gift, will or intestacy,
or to affiliates or immediate family members, provided that the transferee
agrees to be bound by the restrictions of this Section 6(h); (I) the filing
by Dominion of a shelf registration statement from which Dominion will not
offer any securities for a period a 60-day period after its filing date;
(J) [INSERT ANY ADDITIONAL NECESSARY EXCEPTIONS].
(i) To use best efforts to complete the listing of the Corporate SPUS
and the Common Stock to be issued and sold pursuant to the Purchase
Contracts on the New York Stock Exchange, Inc., subject only to official
notice of issuance and evidence of satisfactory distribution.
7. Conditions of Underwriters' Obligations; Termination by the
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Underwriters.
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(a) The obligations of the Underwriters to purchase and pay for the
SPUS on any Closing Date shall be subject to the following conditions on
such Closing Date:
(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 Dominion threatened by, the Commission on such date. The
Representative shall have received, prior to payment for the SPUS, a
certificate dated the Closing Date and signed by the President or any
Vice President of Dominion 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 Dominion, 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 SPUS shall be in full force and effect and all provisions of
such order or orders heretofore entered are deemed acceptable to the
Representative and Dominion, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Representative and Dominion 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 McGuireWoods LLP,
counsel to the Company, _______________ and _______________, counsels
to the Underwriters, the Company's General Counsel, and
______________________, counsel to the Purchase Contract Agent
substantially in the forms attached hereto as Schedules III,
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IV, V, VI and VII, respectively, all in form and substance
satisfactory to the Representative.
(iv) The Representative shall have received from Deloitte &
Touche LLP, on the date of this Agreement and on the Closing Date,
with respect to Dominion, [and from PricewaterhouseCoopers LLP, on the
date of this Agreement, with respect to Consolidated Natural Gas
Company for periods ending not later than December 31, 1999,] a letter
addressed to the Representative, dated the date of this Agreement and
the Closing Date with respect to Deloitte & Touche LLP, [and dated the
date of this Agreement with respect to PricewaterhouseCoopers LLP,]
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,
including the pro-forma financial information.
(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 (exclusive of amendments or
supplements after the date hereof), and except for the sale of
Dominion's common stock pursuant to Dominion's registration statement
No. 333-______ as contemplated in Section 6(h)(vii) above, there shall
not have occurred (1) any change in the common stock or long-term debt
of Dominion (other than a decrease in the aggregate principal amount
of such debt outstanding), (2) any material adverse change in the
general affairs, financial condition or earnings of Dominion and its
subsidiaries taken as a whole or (3) any material transaction entered
into by Dominion or a Significant Subsidiary other than a transaction
in the ordinary course of business, the effect of which in each such
case in the reasonable judgment of the Representative is so material
and so adverse that it makes it impracticable to proceed with the
public offering or delivery of the SPUS 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 Dominion's
senior unsecured notes, or securities that are pari passu to
Dominion'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)
and no such organization shall have given any notice of any intended
or potential downgrading or of any review for a possible change with
possible negative implications in its ratings of such securities, (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 suspension of trading of
any securities of Dominion on the New York Stock Exchange, (4) a
banking moratorium declared either by federal or New York State
authorities or (5) any outbreak or escalation of major hostilities in
which the United States is involved,
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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, or if there has occurred any
material adverse change in the financial markets, the effect of which
outbreak, escalation, declaration, calamity, crisis or material
adverse change, in the reasonable judgment of the Representative,
makes it impracticable to proceed with the public offering or delivery
of the SPUS 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
Dominion in this Agreement shall be true and correct as if made on and
as of such date, and Dominion shall have performed all obligations and
satisfied all conditions required of it under this Agreement; and, on
the Closing Date, the Representative shall have received a certificate
to such effect signed by the President or any Vice President of
Dominion.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the SPUS shall have been satisfactory in form and
substance to _______________ and _______________.
(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
Dominion; 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 50% or more of the total number of the SPUS 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 Dominion to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason Dominion shall be unable
to perform its obligations under this Agreement, then in any such case,
Dominion 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, Dominion shall be absolved from any
further liability hereunder, except as provided in Section 6(b) and Section
9.
8. Conditions of the Obligation of Dominion. The obligation of Dominion
----------------------------------------
to deliver the SPUS 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 such conditions
shall not have been fulfilled, this Agreement may be
-11-
terminated by Dominion 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
hereof.
9. Indemnification and Contribution. (a) Dominion 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 or defending 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 SPUS 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 Dominion
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
and Dominion satisfied its obligations pursuant to Section 6(a) hereof, 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 Dominion 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 Dominion contained in this Section 9(a) and the representations and
warranties of Dominion 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 SPUS.
-12-
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Dominion, its officers and directors, and each person who controls
any of the foregoing 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 or defending 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 Dominion 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 Dominion or any such controlling person, and shall
survive the delivery of the SPUS.
(c) Dominion and each of the Underwriters agree that, upon the receipt of
notice of the commencement of any action against Dominion or any of its officers
or directors, or any person controlling Dominion, 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
(including impleaded parties) 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
-13-
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 (in addition to one local 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 (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9(a) or 9(b) 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 Dominion, 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 Dominion on the one
hand or by the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Dominion and the Underwriters 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
-14-
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. The
remedies provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
10. Termination. If any one or more of the Underwriters shall fail or
-----------
refuse to purchase the SPUS which it or they have agreed to purchase hereunder,
and the aggregate principal amount of the SPUS which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the total number of SPUS, then the other Underwriters shall be
obligated severally in the proportions which the total number of SPUS 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 SPUS 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 the SPUS
and the total number of SPUS with respect to which such default occurs is more
than one-tenth of the total number of SPUS and arrangements satisfactory to the
Underwriters and Dominion for the purchase of such SPUS 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 Dominion (except as provided in Section 6(b) and Section 9).
In any such case not involving a termination, either the Representative or
Dominion 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 Dominion 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 Dominion, and shall survive delivery
of the SPUS.
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 Dominion, the Underwriters and, with respect to the
provisions of Section 9 hereof, each controlling person and each officer and
director of Dominion 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 SPUS from any of the
several Underwriters.
-15-
13. Notices. All communications hereunder shall be in writing and if to
-------
the Underwriters shall be mailed, faxed or delivered to the Representative
at the address set forth on Schedule I hereto, or if to Dominion shall be
mailed, faxed or delivered to it, attention of Treasurer, Dominion
Resources, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (facsimile
number: (000) 000-0000).
-16-
Please sign and return to us a counterpart of this letter, whereupon this
letter will become a binding agreement between Dominion and the several
Underwriters in accordance with its terms.
DOMINION RESOURCES, INC.
By:_________________________________
Name:
Title:
-17-
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
_______________________________
acting individually and as Representative
of the Underwriters named in Schedule II hereto
By: _______________________________
________________________________
Authorized Signatory
Name:
Title:
-18-
SCHEDULE I
Titles of SPUS: Stock Purchase Unit Securities
Dividend on Corporate SPUS: _____%
Coupon on Senior Note: ______%
Purchase Contract Payment: ______%
Total Number of SPUS Being Offered: _______________ SPUS
Price to Public Per SPUS: $_____
Total Price to Public: $____________
Underwriting Discount and Commissions Per SPUS: $____
Total of Underwriting Discount and Commissions: $_____________
Proceeds to Dominion Per SPUS: $_____
Total Proceeds to Dominion: $_____________
Time of Delivery: _______________, 10:00 A.M.
Closing Location: One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
The SPUS will be available for inspection by the
Representative at:
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Address for Notices to the Underwriters:
I-1
with a copy of any notice pursuant to Section 9(c) also sent to:
I-2
SCHEDULE II
Number of SPUS
Underwriter to be Purchased
----------- ---------------
___________
Total:
II-1
SCHEDULE III
PROPOSED FORM OF OPINION
OF
[UNDERWRITERS' COUNSEL]
Re: DOMINION RESOURCES, INC
[Representatives Names]
[Representatives Names and Addresses]
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you of an
aggregate of up to _______________ Stock Purchase Unit Securities ("SPUS")
consisting of up to _______________ Corporate SPUS (the "Corporate SPUS") issued
by Dominion Resources, Inc., a Virginia corporation (the "Company"), pursuant to
the Underwriting Agreement, dated _______________ (the "Underwriting
Agreement"), between you and the Company. Capitalized terms used and not
otherwise defined herein shall have the respective meanings set forth in the
Underwriting Agreement.
We have examined the (i) Registration Statement on Form S-3 (File No. 333-
______) filed by the Company under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act (the "Registration Statement");
(ii) the Company's prospectus dated _______________ (the "Base Prospectus"), as
supplemented by the prospectus supplement relating to the SPUS dated
_______________ (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus"), filed by the Company pursuant to Rule 424(b) of
the rules and regulations of the Securities and Exchange Commission (the
"Commission") under the Act, which pursuant to Form S-3 incorporates by
reference or is deemed to incorporate by reference ___ the Company's Annual
Report on Form 10-K and Form 10-K/A for the year ended _______________, as filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
We have also examined (i) the Purchase Contract Agreement, dated as of
_______________ (the "Purchase Contract Agreement"), between the Company and
_____________________, as Purchase Contract Agent; (ii) the Pledge Agreement,
dated as of _______________ (the "Pledge
III-1
Agreement"), among the Company, ____________________ as Collateral Agent and
Securities Intermediary, and the Purchase Contract Agent; (iii) the Remarketing
Agreement, dated as of _______________, between the Company and
___________________(the "Remarketing Agreement"); (iv) the Indenture, dated as
of June 1, 2000 (the "Indenture"), between the Company and The Chase Manhattan
Bank, as Trustee, as amended and Supplemented by the ___________ Supplemental
Indenture to the Indenture, dated _______________, pursuant to which the Senior
Notes will be issued; (v) the Global Corporate SPUS Certificates; (vi) the
Global Treasury SPUS Certificates; (vii) the Global Senior Notes; (viii) a
specimen of a share of common stock of the Company; and (ix) the Underwriting
Agreement. The Purchase Contract Agreement, the Pledge Agreement, the Indenture,
the SPUS and the Senior Notes are collectively referred to as the "Operative
Documents."
In addition, we have examined, and have relied as to matters of fact upon,
the documents delivered to you at the closing, and upon originals or copies,
certified or otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such other and further investigations, as we have
deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, and the authenticity of the
originals of such latter documents.
In addition, for purposes of this opinion we have assumed the
following:
(i) the Company has been duly incorporated and, since the date
of execution of each Operative Document, has been validly existing and in
good standing as a corporation under the laws of the Commonwealth of
Virginia;
(ii) the Company has full power, authority and legal right to
enter into and perform its obligations under, and consummate the
transactions contemplated by, each Operative Document;
(iii) the execution, delivery and performance of the Operative
Documents by the Company do not violate the laws of the Commonwealth of
Virginia or any other applicable laws (excepting the laws of the State of
New York and the federal laws of the United States); and
(iv) the execution, delivery and performance of the Operative
Documents by the Company do not constitute a breach or violation of any
agreement or instrument which is binding upon it.
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion that:
III-2
1. Assuming (a) the due authorization, execution and delivery of the
Purchase Contract Agreement by the Company and (b) that the Purchase
Contract Agreement is the valid and legally binding obligation of the
Purchase Contract Agent, the Purchase Contract Agreement constitutes a
valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms.
2. Assuming (a) the due authorization, execution and delivery of the
Pledge Agreement by the Company and (b) that the Pledge Agreement is
the valid and legally binding obligation of the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, the Pledge
Agreement constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms.
3. Assuming (a) the due authorization, execution and delivery of the
Indenture by the Company and the due qualification of the Indenture
under the Trust Indenture Act and (b) that the Indenture is the valid
and legally binding obligation of the Trustee, the Indenture
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms.
4. Assuming (a) the due authorization, execution and delivery of the SPUS
by the Company, (b) the due execution of the SPUS by the Purchase
Contract Agent as attorney-in-fact of the holders thereof, (c) the due
authentication of the SPUS by the Purchase Contract Agent, (d) the due
authorization, execution and issuance of the Senior Notes by the
Company and (e) the due authentication of the Senior Notes by the
Trustee, upon payment and delivery in accordance with the Underwriting
Agreement, the SPUS constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Purchase Contract
Agreement.
5. Assuming (a) the due authorization, execution and issuance of the
Senior Notes by the Company and (b) the due authentication by the
Trustee, upon payment and delivery of the SPUS in accordance with the
Underwriting Agreement, the Senior Notes will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of
the Indenture.
6. The statements made in the Base Prospectus under the caption
"Description of Stock Purchase Contracts and Stock Purchase Units",
"Description of Capital Stock - Common Stock" and "Description of Debt
Securities", as supplemented by the statements made in the Prospectus
Supplement under the caption "Prospectus Supplement Summary - The
Offering", "Description of the SPUS", "Description of the Purchase
Contracts" and "Certain Provisions of the Purchase Contracts, the
Purchase Contract Agreement and the Pledge Agreement", "Description of
the Senior Notes" insofar as they purport to constitute summaries
III-3
of certain terms of documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects.
Our opinions set forth in paragraphs 1, 2, 3, 4, and 5 above are subject to
(i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant of
good faith and fair dealing; provided, however, that based on a review of
applicable case law, upon the occurrence of a Termination Event, Section
365(e)(1) of the Bankruptcy Code (11 U.S.C. (S)(S) 101-1330, as amended) should
not substantively limit the provisions of Sections 3.16 and 5.8 of the Purchase
Contract Agreement and Section 5.4 of the Pledge Agreement that require
termination of the Purchase Contracts and release of the Collateral Agent's
security interest in the Senior Notes or the Treasury Securities.
All legal proceedings taken by the Company in connection with the offering
of the SPUS, and the legal opinions, dated the date hereof, rendered to you
pursuant to the Underwriting Agreement by Xxxxx X. Xxxxxx, Esq., Vice President
and General Counsel of the Company, McGuireWoods LLP, counsel to the Company,
and _______________, counsel to you, each members of the Bar of the Commonwealth
of Virginia, are in form satisfactory to us.
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York and the federal law of the United States.
This opinion letter is rendered to you in connection with the above-
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
_______________________________
III-4
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
[UNDERWRITERS' COUNSEL]
Re: DOMINION RESOURCES, INC.
____________ PREMIUM INCOME EQUITY SECURITIES
Consisting of _____________ Corporate SPUS
[Insert Date]
[Representative Name]
as Representative for the Underwriters
listed in Schedule II to the Underwriting Agreement
[Representative Address]
Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements for
the issuance by Dominion Resources, Inc. (Dominion) of up to _______________
Stock Purchase Unit Securities (the SPUS) and the offering of the SPUS by you
pursuant to an Underwriting Agreement dated _______________, by and between you
and Dominion (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 Dominion, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of Dominion 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
facts were not independently established, relied upon certifications by officers
of Dominion, 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.
IV-1
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, One Xxxxx Center, Richmond, Virginia, at which Dominion
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:
1. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Virginia, and has the corporate
power to transact its business as described in the Prospectus.
2. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by Dominion.
3. The Remarketing Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by Dominion.
4. The SPUS have been duly authorized by all necessary corporate
action and have been duly executed and delivered by Dominion.
5. The Purchase Contract Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by Dominion.
6. The Pledge Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by Dominion.
7. The Senior Notes have been duly authorized by Dominion and, when
duly executed by Dominion and completed and authenticated by the Trustee in
accordance with, and in the form contemplated by, the Indenture and issued,
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 Dominion 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).
8. The Indenture has been duly authorized, executed and delivered by
Dominion and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of Dominion, 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).
9. The unissued shares of Common Stock to be issued and sold by
Dominion pursuant to the Purchase Contracts have been duly and validly
authorized and reserved for
IV-2
issuance and, when issued and delivered in accordance with the provisions of the
Purchase Contracts, will be duly and validly issued, fully paid and non-
assessable.
10. The Registration Statement (Reg. No. 333-_____) with respect to
the SPUS 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 SPUS in the manner therein specified.
11. The Registration Statement (which includes the Incorporated
Documents) and the Prospectus (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)
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.
12. As to the statements relating to the Senior Notes under
DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT SECURITIES in
the prospectus initially filed as part of the Registration Statement, as
supplemented by the statements under the DESCRIPTION OF THE SENIOR NOTES in the
Prospectus Supplement dated _______________ (the Prospectus Supplement), and
statements relating to the Common Stock under DESCRIPTION OF CAPITAL STOCK in
the prospectus initially filed as part of the Registration Statement, 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.
13. 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 captions in the opinion in the preceding paragraph. 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
(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 the Prospectus contained on the date it was issued, or that the
Registration Statement or the Prospectus 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
IV-3
modified or superseded by any statement in a subsequently filed Incorporated
Document or in the Registration Statement or Prospectus.
14. An appropriate order of the Securities and Exchange Commission
(the Commission) with respect to the sale of the SPUS 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 SPUS 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 SPUS 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 SPUS in such states) and the carrying out of the provisions of
the Underwriting Agreement.
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. This opinion may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Very truly yours,
[UNDERWRITERS' COUNSEL]
IV-4
SCHEDULE V
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: DOMINION RESOURCES, INC.
____________ PREMIUM INCOME EQUITY SECURITIES
Consisting of ___________ Corporate SPUS
________________
[Representative Name]
as Representative for the Underwriters
listed in Schedule II to the Underwriting Agreement
[Representative Address]
Ladies and Gentlemen:
The arrangements for issuance of up to ___________ Stock Purchase Unit
Securities (the SPUS), of Dominion Resources, Inc. (Dominion), pursuant to an
Underwriting Agreement dated _______________, by and between Dominion and the
Underwriters listed on Schedule II as attached thereto (the Underwriting
Agreement), have been taken under our supervision as counsel for Dominion.
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 Dominion, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of Dominion 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 Dominion, the Trustee and other appropriate
persons and statements contained in the
V-1
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. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than those required under the
Public Utility Holding Company Act of 1935, the Securities Act and the Rules and
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states) is necessary or required in
connection with the due authorization, execution and delivery of the
Underwriting Agreement or the due execution, delivery or performance of the
Indenture, the Senior Notes, the Purchase Contract Agreement, the Pledge
Agreement and the Remarketing Agreement by Dominion or for the offering,
issuance, sale or delivery of the SPUS. An appropriate order of the Securities
and Exchange Commission (the Commission) with respect to the sale of the SPUS
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 SPUS as contemplated by the
Underwriting Agreement.
2. The Indenture has been duly authorized, executed, and delivered
by, and constitutes a valid and binding obligation of, Dominion and has been
duly qualified under the Trust Indenture Act, in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
3. The Corporate SPUS have been duly authorized by Dominion, and
when duly executed by Dominion (assuming due execution by the Purchase Contract
Agent as attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent) and delivered by Dominion and upon payment therefor as
set forth in the Underwriting Agreement, will be duly and validly issued and
outstanding, and will constitute valid and binding obligations of Dominion
entitled to the benefits of the Purchase Contracts and enforceable against
Dominion in accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
4. The Treasury SPUS, when issued, will be duly authorized by
Dominion, and when duly executed by Dominion (assuming due execution by the
Purchase Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by Dominion, will
be duly and validly issued and outstanding, and will constitute valid and
binding obligations of Dominion entitled to the benefits of the Purchase
Contracts and enforceable against Dominion in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar
V-2
laws relating to or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
5. The Senior Notes have been duly authorized by Dominion and, when
duly executed by Dominion 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 Dominion entitled to the benefits provided by the Indenture, in
accordance with their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
6. The unissued shares of Common Stock to be issued and sold by
Dominion pursuant to the Purchase Contracts have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, will be duly and
validly issued, fully paid and non-assessable.
7. The Purchase Contract Agreement has been duly authorized by
Dominion and, when duly executed by the proper officers of Dominion (assuming
due execution and delivery by the Purchase Contract Agent) and delivered by
Dominion, will constitute a valid and binding agreement of Dominion enforceable
against Dominion in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; provided, however, that
based on a review of applicable case law, upon the occurrence of a Termination
Event, Section 365(e)(1) of the Bankruptcy Code (11 U.S.C. (S)(S) 101-1330, as
amended) should not substantively limit the provisions of Sections ____ and ____
of the Purchase Contract Agreement and Section __ of the Pledge Agreement that
require termination of the Purchase Contract Agreement and release of the
Collateral Agent's security interest in the Senior Notes or the Treasury
Securities.
8. The Pledge Agreement has been duly authorized by Dominion and,
when duly executed by the proper officers of Dominion (assuming due execution
and delivery by the Purchase Contract Agent, the Securities Intermediary and the
Collateral Agent) and delivered by Dominion, will constitute a valid and binding
agreement of Dominion enforceable against Dominion in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing; provided, however, that based on a review of applicable case law, upon
the occurrence of a Termination Event, Section 365(e)(1) of the Bankruptcy Code
(11 U.S.C. (S)(S) 101-1330, as amended) should not substantively limit the
provisions of Sections ___ and ___ of the Purchase Contract Agreement and
Section ___ of the Pledge Agreement that require termination of the Purchase
Contract Agreement and release of the Collateral Agent's security interest in
the Senior Notes or the Treasury Securities.
V-3
9. The Corporate SPUS, the Indenture, the Senior Notes, the Common
Stock to be issued and sold pursuant to the Purchase Contract Agreement, the
Purchase Contract Agreement, the Pledge Agreement and the Remarketing Agreement,
when the Corporate SPUS are delivered pursuant to the Agreement, will conform to
the descriptions thereof contained in the Prospectus.
10. The Registration Statement (Reg. No. 333-_____) with respect to
the SPUS 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 SPUS in the manner therein specified.
11. The Registration Statement and the Prospectus 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 (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).
12. We are of the opinion that the statements relating to the SPUS,
the Senior Notes, and the Common Stock contained in the prospectus initially
filed as part of the Registration Statement under DESCRIPTION OF DEBT
SECURITIES, ADDITIONAL TERMS OF SENIOR DEBT SECURITIES, DESCRIPTION OF CAPITAL
STOCK and DESCRIPTION OF STOCK PURCHASE CONTRACT AGREEMENT AND STOCK PURCHASE
UNITS, as all or any of them have been supplemented by the statements under
DESCRIPTION OF THE SPUS, DESCRIPTION OF THE PURCHASE CONTRACTS, CERTAIN
PROVISIONS OF THE PURCHASE CONTRACTS, THE PURCHASE CONTRACT AGREEMENT, AND THE
PLEDGE AGREEMENT and DESCRIPTION OF THE SENIOR NOTES in the Prospectus
Supplement dated _______________ are substantially accurate and fair.
13. We have participated in conferences with officers and other
representatives of Dominion and representatives of the Underwriters at which the
contents of the Registration Statement and the Prospectus were discussed and we
have consulted with officers and other employees of Dominion to inform them of
the disclosure requirements of the Securities Act. We have examined various
reports, records, contracts and other documents of Dominion 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 Dominion and the closing at which Dominion 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
Dominion which our investigation did not lead us to deem pertinent. As to the
statistical statements in the Registration Statement, we have relied solely on
the officers of Dominion. 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 captions in the opinion in the preceding
paragraph and in paragraph 14 below. But such conferences, 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
contained on the date
V-4
the Registration Statement became effective, or the Prospectus contained on the
date it was issued, or that the Registration Statement or the Prospectus
contains now, any untrue statement of a material fact or omitted on such 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 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.
14. With regard to the discussion in the Prospectus Supplement under
the caption CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS, we are of
the opinion that under current United States federal income tax law, although
the discussion does not purport to discuss all possible United States federal
income tax consequences of the SPUS, such discussion constitutes an accurate
summary of the matters discussed therein in all material respects. In rendering
the aforementioned tax opinion, we have considered the current provisions of the
Internal Revenue Code of 1986, as amended, Treasury regulations promulgated
thereunder, judicial decisions and Internal Revenue Service rulings, all of
which are subject to change, which changes may be retroactively applied. A
change in the authorities upon which our opinion is based could affect our
conclusions. There can be no assurance, moreover, that any of the opinions
expressed herein will be accepted by the Internal Revenue Service, or, if
challenged, by a court.
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. This opinion may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
V-5
SCHEDULE VI
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
DOMINION RESOURCES, INC.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: DOMINION RESOURCES, INC.
____________ PREMIUM INCOME EQUITY SECURITIES
Consisting of ____________ Corporate SPUS
_______________
[Representative Name]
as Representative for the Underwriters
listed in Schedule II to the Underwriting Agreement
[Representative Address]
Ladies and Gentlemen:
The arrangements for issuance of up to _______________ Stock Purchase
Unit Securities (the SPUS), of Dominion Resources, Inc. (Dominion), pursuant to
an Underwriting Agreement dated _______________, by and between Dominion and the
Underwriters listed on Schedule II as attached thereto (the Underwriting
Agreement), have been taken under my supervision as Vice President and General
Counsel of Dominion. Terms not otherwise defined herein have the meanings set
forth in the Underwriting Agreement.
As Vice President and General Counsel of Dominion, I have general
responsibility over the attorneys within Dominion's Legal Department responsible
for rendering legal counsel to Dominion regarding corporate, financial,
securities, and other matters. I am generally familiar with the organization,
business and affairs of Dominion. I am also familiar with the proceedings taken
and proposed to be taken by Dominion in connection with the offering and sale of
the SPUS, and I have examined such corporate records, certificates and other
VI-1
documents and such questions of the law as I have considered necessary or
appropriate for the purposes of this opinion. In addition, I have
responsibility for supervising lawyers who may have been asked by me or others
to review legal matters arising in connection with the offering and sale of the
SPUS. Accordingly, some of the matters referred to herein have not been handled
personally by me, but I have been made familiar with the facts and circumstances
and the applicable law, and the opinions herein expressed are my own or are
opinions of others in which I concur.
On this basis I am of the opinion that:
1. Dominion has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Virginia, and has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement; and Dominion is duly qualified as
a foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect.
2. Each Significant Subsidiary of Dominion has been duly
incorporated and is validly existing as a corporation in good standing under the
respective laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or to be in good standing would not result in a Material Adverse Effect.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by Dominion.
4. The Remarketing Agreement has been duly authorized, executed and
delivered by Dominion.
5. There are no actions, suits or proceedings pending or, to the
best of my knowledge, threatened, to which Dominion or one of its subsidiaries
is a party or to which any of Dominion's or any of its subsidiaries' properties
is subject other than any proceedings described in the Prospectus and
proceedings which I believe are not likely to have a material adverse effect on
the power or ability of Dominion to perform its obligations under the
Underwriting Agreement or to consummate the transactions contemplated thereby or
by the Prospectus.
I am a member of the Bar of the Commonwealth of Virginia and I do not
purport to express an opinion on any laws other than those of the Commonwealth
of Virginia and the United States of America. This opinion may not be relied
upon by, nor may copies be delivered to, any person without our prior written
consent. I do not undertake to advise you of any changes
VI-2
in the opinions expressed herein resulting from matters that may hereinafter
arise or that may hereinafter be brought to my attention.
Yours very truly,
VI-3
SCHEDULE VII
PROPOSED FORM OF OPINION
OF
[PURCHASE CONTRACT AGENT'S COUNSEL]
-----------------------------------
COUNSEL TO ________________________
Re: DOMINION RESOURCES, INC.
____________ PREMIUM INCOME EQUITY SECURITIES
Consisting of ____________ Corporate SPUS
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
[Representative Name]
as Representative for the Underwriters
listed in Schedule II to the Underwriting Agreement
[Representative Address]
Ladies and Gentlemen:
We have acted as counsel to ________________________ (the "Bank") in
connection with (a) the Purchase Contract Agreement, dated as of _______________
(the "Purchase Contract Agreement"), between Dominion Resources, Inc. (the
"Company") and the Bank, as Purchase Contract Agent, (b) the Pledge Agreement,
dated as of _______________ (the "Pledge Agreement"), among the Company, the
Bank, as Purchase Contract Agent, and ________________, as Collateral Agent and
Securities Intermediary, and (c) the _______________ Stock Purchase Unit
Securities (the "SPUS") issued under the Purchase Contract Agreement on the date
hereof.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Purchase Contract
VII-1
Agreement, the Pledge Agreement and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of opinion that:
(i) the Bank has been duly incorporated and is validly existing as
a banking corporation in good standing under the laws of the State of New York;
(ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Purchase Contract Agreement
and the Pledge Agreement, has duly executed and delivered the Purchase Contract
Agreement and the Pledge Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due authorization, execution and
delivery thereof by the other parties thereto, each of the Purchase Contract
Agreement and the Pledge Agreement constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
(iii) the execution, delivery and performance by the Bank of the
Purchase Contract Agreement and the Pledge Agreement do not conflict with or
constitute a breach of the charter or bylaws of the Bank;
(iv) no approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the State of New
York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Purchase Contract
Agreement or the Pledge Agreement or the performance by the Bank of its duties
thereunder, except such as have been obtained, taken or made; and
(v) the SPUS issued on the date hereof have been duly authenticated
by the Bank, as Purchase Contract Agent.
We are admitted to practice only in the State of New York, and we
express no opinion as to matters governed by any laws other than the laws of the
State of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
[PURCHASE CONTRACT AGENT'S COUNSEL]
VII-2
