Exhibit 1
January 14, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
as Representatives of the Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Dominion Resources, Inc., a Virginia corporation (the
"Company"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "Underwriters") for
whom you are acting as representatives (in such capacity you
shall be referred to as the "Representatives"), 6,500,000 shares
of its common stock (no par value) (the "Firm Shares"). The
Company also proposes to issue and sell to the several
Underwriters not more than an additional 975,000 shares of its
common stock (no par value) (the "Additional Shares") if and to
the extent the Representatives shall have determined to exercise,
on behalf of the Underwriters, the right to purchase such shares
of common stock granted to the Underwriters in Section II hereof.
The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the Shares. The shares of common
stock (no par value) of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter
referred to as the Common Stock.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3,
including a prospectus, relating to the registration of the
Shares and certain of the Company's debt securities under the
Securities Act of 1933, as amended, (the "Securities Act"), and
the offering thereof from time to time in accordance with Rule
415 of the rules and regulations promulgated under the Securities
Act (the "Rules and Regulations"). Such registration statement
has been declared effective by the Commission. The registration
statement (No. 333-35501) as amended at the time it became
effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness
pursuant to Rule 430A or Rule 434 under the Securities Act, is
hereinafter referred to as the "Registration Statement;" and the
prospectus (including any prospectus supplement whether or not
such prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations in the form
first used to confirm sales of Shares) is hereinafter referred to
as the Prospectus (including, in the case of all references to
the Registration Statement and the Prospectus, documents
incorporated therein by reference).
SECTION I. Representations and Warranties
The Company represents and warrants to you and to each of
the other Underwriters as of the date hereof that:
(a) The Registration Statement has become effective,
no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the
Commission.
(b) The Registration Statement, on the effective date
thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and
Regulations and did not 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, and, on the date of this Agreement,
and on the Closing Date, the Registration Statement and the
Prospectus conform in all material respects to the
requirements of the Securities Act and the Rules and
Regulations and neither of such documents includes any
untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representation or warranty as to the information contained
in or omitted from such documents, in reliance upon and in
conformity with information furnished to the Company by or
on behalf of the Underwriters through the Representatives
specifically for inclusion therein.
(c) The documents incorporated, or deemed to be
incorporated, by reference in the Prospectus pursuant to
Item 12 of the requirements of Form S-3 under the Securities
Act, at the time they were or hereafter are filed with the
Commission, complied, and will comply, in all material
respects with the applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations of the Commission promulgated
thereunder, and when read together with the other
information in the Prospectus, at the date of the Prospectus
and on the Closing Date, do not and will not include an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(d) Since the respective dates as of which information
is given in the Prospectus, except as stated therein, there
has not been any material adverse change, or any development
involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings,
business affairs or operations of the Company and its
subsidiaries, taken as a whole.
(e) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its property
and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under this
Agreement and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(f) Virginia Electric and Power Company, Dominion
Energy, Inc., Dominion Capital, Inc. and East Midlands
Electricity plc (collectively, the "Principal Subsidiaries")
are the Company's principal operating subsidiaries and each
Principal Subsidiary has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its property
and to conduct its business as described in the Prospectus;
and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole. All of the issued and outstanding capital
stock of each Principal Subsidiary has been duly authorized
and validly issued and is fully paid and non-assessable, and
the capital stock of each Principal 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.
(g) The execution and delivery by the Company of this
Agreement and the performance by the Company of its
obligations hereunder have been duly authorized by all
necessary corporate action on the part of the Company; and
this Agreement has been duly executed and delivered by the
Company.
(h) The Common Stock of the Company conforms in all
material respects to the description thereof in the
Prospectus.
(i) The Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be
subject to any preemptive or similar rights.
(j) The execution and delivery by the Company of, and
the performance by the Company of its obligations under,
this Agreement and the issuance and sale by the Company of
the Shares do not and will not contravene any provision of
applicable law, the Articles of Incorporation or the By-laws
of the Company, or any agreement or other instrument binding
upon the Company, the effect of which is materially adverse
to the condition, financial or otherwise, or the earnings,
business affairs or operations of the Company and its
subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries.
No approval, authorization or consent of any court or
governmental authority or agency is required on the part of
the Company in connection with the consummation of the
transactions contemplated by the this Agreement, except such
as have been obtained or will have been obtained prior to
the Closing Date or as may be required under state
securities laws.
(k) The Company is not in violation of its Articles of
Incorporation or By-laws or in default in the performance or
observation of any obligation, agreement, covenant or
condition contained in any contract or agreement to which it
is a party or by which it or any of its properties may be
bound, the effect of which violation or default is
materially adverse to the condition, financial or otherwise,
or the earnings, business affairs or operations of the
Company and its subsidiaries, taken as a whole.
(l) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to
which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject, other than proceedings accurately
described in all material respects in the Prospectus, the
effect of which is materially adverse to the condition,
financial or otherwise, or the earnings, business affairs or
operations of the Company and its subsidiaries, taken as a
whole, or on the power or ability of the Company to perform
its obligations under this Agreement.
(m) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) Any certificate signed by any duly authorized
officer of the Company or any Principal Subsidiary and
delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered
thereby.
(o) The Company is not, and, after giving effect to
the offering and sale of the Shares 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 (the
"1940 Act").
(p) The Company is a "holding company" within the
meaning of that term as defined in the Public Utility
Holding Company Act of 1935, as amended, but the Company is
exempt from the provisions of such Act, other than Section
9(a)(2) thereof, by virtue of the exemption provided by
Section 3(a)(1) of such Act.
(q) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the
protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except
where noncompliance with such Environmental Laws, failure to
receive such required permits, licenses or other approvals
or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(r) The accountants who certified the financial
statements and supporting schedules included or incorporated
by reference in the Prospectus and any prospectus supplement
are independent auditors with respect to the Company under
Rule 101 of the AICPA's Code of Professional Conduct in its
interpretations and rulings.
(s) At June 30, 1997, the authorized, issued and
outstanding Common Stock of the Company was as set forth in
the Prospectus in first paragraph of the section entitled
"Description of Capital Stock."
(t) The financial statements included in the
Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on
a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected
financial data and the summary financial information
included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in
the Registration Statement.
(u) The Common Stock (other than the Shares) is, and
upon issuance the Shares will be, listed on the New York
Stock Exchange.
(v) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate
located in Cuba.
SECTION II. Agreements to Sell and Purchase
The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees, severally and not
jointly, to purchase from the Company the respective numbers of
Firm Shares set forth in Schedule I hereto opposite its name at
U.S. $39.525 a share (the "Purchase Price").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the
Company agrees to sell to the Underwriters the Additional Shares,
and the Underwriters shall have a one-time right to purchase,
severally and not jointly, up to 975,000 Additional Shares at the
Purchase Price. If the Representatives, on behalf of the
Underwriters, elect to exercise such option, the Representatives
shall so notify the Company in writing not later than thirty (30)
days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date but not
earlier than the Closing Date nor later than ten business days
after the date of such notice. Additional Shares may be
purchased as provided in Section IV hereof solely for the purpose
of covering over-allotments made in connection with the offering
of the Firm Shares. If any Additional Shares are to be purchased,
each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine)
that bears approximately the same proportion to the total number
of Additional Shares to be purchased as the number of Firm Shares
set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written
consent of the Representatives, it will not during the period
ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock
of the Company or any securities convertible into or exercisable
or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have
been advised in writing, (C) the issuance or grant of shares of
Common Stock or options or rights to purchase shares of Common
Stock pursuant to benefit and compensation plans, (D) the
issuance or grant of shares of Common Stock or options or rights
to purchase shares of Common Stock in connection with the
Company's Dominion Direct Investment Plan, and (E) agreements or
arrangements in connection with acquisition transactions
involving the issuance or sale of shares of Common Stock or
relating to options, rights, warrants or any securities
convertible into or exercisable or exchangeable for shares of
Common Stock, where the acquisition transactions are consummated
more than 90 days after the date of the Prospectus.
SECTION III. Terms of Public Offering
The Company is advised by the Representatives that the
Underwriters propose to make a public offering of their
respective portions of the Shares as soon after this Agreement
has become effective as in the Representatives' judgement is
advisable. The Company is further advised by the Representatives
that the Shares are to be offered to the public initially at
$40.625 a share (the "Public Offering Price") and to certain
dealers selected by the Representatives at a price that
represents a concession not in excess of $0.70 a share under the
Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of $0.10 a
share, to any Underwriter or to certain other dealers.
SECTION IV. Payment and Delivery
Payment for the Firm Shares shall be made by or on behalf of
the several Underwriters by the wire transfer of immediately
available funds to the Company's account upon delivery of the
Firm Shares to the Representatives or upon their order at the
office of Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, at 10:00 A.M., New York City time, on the third
business day (unless postponed in accordance with the provisions
of Section IX) following the date of this Agreement, or if
pricing takes place after 4:30 P.M. New York time, on the fourth
business day following the date of this Agreement (unless
postponed in accordance with the provisions of Section IX), or at
such other time on the same or such other earlier date, as shall
be agreed upon by the Representatives and the Company. The time
and date of such payment are hereinafter referred to as the
Closing Date.
Payment for any Additional Shares shall be made by or on
behalf of the several Underwriters by the wire transfer of
immediately available funds to the Company's account upon
delivery of the Additional Shares to the Representatives or upon
their order at the office of Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York City
time, on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than
ten business days after the giving of the notice hereinafter
referred to) as shall be designated in a written notice from the
Representatives to the Company of the Representatives'
determination, on behalf of the Underwriters, to purchase a
number, specified in said notice, of Additional Shares, or on
such other date, in any event not later than February 13, 1998,
as shall be agreed upon by the Representatives and the Company.
The time and date of such payment are hereinafter referred to as
the Option Closing Date. The notice of the determination to
exercise the option to purchase Additional Shares and of the
Option Closing Date may be given at any time within 30 days after
the date of this Agreement.
Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names and in such
denominations as the Representatives shall request in writing not
later than one full business day prior to the Closing Date or the
Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be
delivered to the Representatives on the Closing Date or the
Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price
therefor.
SECTION V. Conditions to the Underwriters' Obligations
The several obligations of the Underwriters hereunder are
subject to the following further conditions:
5.1 If the Company does not elect to rely on Rule 434 under
the Rules and Regulations, and if the filing of the Prospectus is
required pursuant to Rule 424(b), the Prospectus (including a
prospectus supplement) shall have been filed with the Commission
in the manner and within the time period required by Rule 424(b).
If the Company elects to rely on Rule 434 under the Rules and
Regulations, immediately following the execution of this
Agreement, the Company will prepare an abbreviated term sheet
that complies with the requirements of Rule 434 under the Rules
and Regulations and will provide the Underwriters with copies of
the form of Rule 434 Prospectus, in such number as the
Representatives shall reasonably request, and if necessary,
promptly file or transmit for filing with the Commission the form
of Prospectus complying with Rule 434(c)(2) of the Rules and
Regulations in accordance with Rule 424(b) thereunder. At or
prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted, or, to the knowledge of the Company, shall be
contemplated by the Commission and the Representatives shall have
received at such closing a certificate signed by an officer of
the Company, dated the Closing Date, to such effect.
5.2 Subsequent to the date of this Agreement and at or
prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
with possible negative implications, in the rating accorded
any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, the effect of
which is materially adverse to the condition, financial or
otherwise, or the earnings, business affairs or operations
of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus and that makes it
impracticable, in the Underwriters' judgment, to market the
Shares on the terms and in the manner contemplated in the
Prospectus.
5.3 The Representatives shall have received a certificate,
dated the Closing Date, and signed by an executive officer of the
Company, to the effect set forth in section 5.2 above and to the
effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
5.4 On the Closing Date, the Representatives shall have
received the favorable opinion, dated as of the Closing Date, of
McGuire, Woods, Battle & Xxxxxx LLP, counsel for the Company, to
the effect set forth in Exhibit A hereto.
5.5 On the Closing Date, the Representatives shall have
received the favorable opinion, dated as of the Closing Date, of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the
Underwriters, to the effect set forth in Exhibit B.
5.6 At the time of execution of this Agreement and as of
the Closing Date, the Representatives shall have received letters
dated as of the date hereof and/or as of the Closing Date, in
form and substance satisfactory to the Representatives, from the
Company's independent public accountants, containing statements
and information of the type ordinarily included in accountants'
SAS 72 "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained
in or incorporated by reference into the Prospectus.
5.7 The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the
Representatives on the Option Closing Date of such documents,
opinions and certificates as the Representatives may reasonably
request with respect to the matters addressed in Sections 5.1
through 5.6 above.
SECTION VI. Covenants of the Company
In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as follows:
6.1 To furnish to the Underwriters, without charge, during
the period mentioned in Section 6.3 below, as many copies of the
Registration Statement (including all documents incorporated by
reference therein) as originally filed and of all amendments
thereto heretofore or hereafter filed, including copies of all
exhibits except those incorporated by reference, the Prospectus,
and any supplements and amendments thereto, as the
Representatives may reasonably request.
6.2 Before amending or supplementing the Registration
Statement or Prospectus, to furnish to the Underwriters a copy of
each such proposed amendment or supplement and not to use any
such proposed amendment or supplement to which the Underwriters
reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
6.3 If, at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act in
connection with sales by an Underwriter or dealer, any event
shall occur or condition exist 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 applicable law, to advise the Representatives of such event
or necessity, as the case may be, and, promptly upon request made
by the Representatives, to prepare and file with the Commission
and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Representatives will
furnish to the Company) to which Shares may have been sold by the
Representatives on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with
applicable law.
6.4 As soon as practicable, to make generally available to
its security holders and to the Underwriters an earnings
statement covering a period of at least twelve months beginning
after the effective date of the registration statement within the
meaning Rule 158 under the Act which will satisfy the provisions
of Section 11(a) of the Act and the Rules and Regulations.
6.5 Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay
all expenses incident to the performance of its obligations under
this Agreement, including: (i) the preparation and filing of the
Registration Statement, any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the
foregoing, (ii) the issuance and delivery of the Shares, (iii)
the fees and disbursements of the Company's counsel and
accountants, (iv) the fees and disbursements of counsel for the
Underwriters in connection with the preparation of any Blue Sky
memoranda, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Prospectus and
any amendments or supplements thereto, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges
of any transfer agent, registrar or depositary, and any transfer
or other taxes payable in connection with the transfer and
delivery of the Shares to the Underwriters, (viii) the costs and
expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the
offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged by the Company or
with the Company's prior approval in connection with the road
show presentations with the prior approval of the Company, travel
and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft
chartered with the prior approval of the Company and in
connection with the road show, and (ix) the fees and expenses
incurred in connection with the listing of such Shares on the New
York Stock Exchange. It is understood, however, that except as
provided in this Section, Section VII entitled "Indemnification,"
and the third paragraph of Section IX, the Underwriters will pay
all of their costs and expenses, including fees and disbursements
of their counsel, stock transfer taxes payable on resale of any
of the Shares by them and any advertising expenses connected with
any offers they may make.
6.6 To use the proceeds received by it from the sale of the
Shares in the manner specified in the Prospectus under "Use of Proceeds."
SECTION VII. Indemnification
(a) The Company agrees to indemnify and hold harmless each
Underwriter, their respective directors, officers and each
person, if any, who controls such Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled
by, such Underwriter, from and against any and all losses,
claims, damages and liabilities, and to reimburse each such
Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by it or them in connection
with investigating or defending or preparing to defend against
any such losses, claims, damages or liabilities arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto), or any omission or alleged omission to
state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made
not misleading, except insofar as such losses, claims, damages or
liabilities arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the
Representatives expressly for use in any preliminary prospectus,
the Prospectus or any amendments or supplements thereto;
provided, however, that the foregoing indemnity, insofar as it
relates to the preliminary prospectus, shall not inure to the
benefit of any indemnified person if the person asserting any
such loss, claim or damage purchased Shares from an Underwriter
and if a copy of the Prospectus (correcting the preliminary
prospectus) was required by law to be delivered and was not
delivered by the Underwriter or on its behalf to such person at
or prior to the written confirmation of the sale of the Shares to
such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such
losses, claims or damages, unless such failure to deliver the
Prospectus was a result of non-compliance by the Company with
Section 6.1, 6.2, or 6.3 hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify, hold harmless and reimburse the Company, its
directors, officers and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but
only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in any preliminary
prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) above, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may
be sought (the "indemnifying party") in writing, 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, upon request of the indemnified party,
retain counsel reasonably satisfactory to the indemnified party
to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to any local counsel if necessary, reasonably
satisfactory to all parties) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxxxx
Xxxxxxx & Co. Incorporated in the case of parties indemnified
pursuant to paragraph (a) above and by the Company in the case of
parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any
litigation, investigation or proceeding effected without its
written consent, 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,
claim damage, expense or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the third and fourth sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. 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 any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding and does not include a
statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section VII is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative fault of the Company, on
the one hand, and of the Underwriters, on the other, in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations,
including relative benefit. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to
be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the
Company on the one hand or by the Underwriters on the other and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined
by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (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 subsection (d) shall be deemed to
include, subject to the limitations set forth in paragraph (c)
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' respective obligations to contribute pursuant to
this Section VII are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
The remedies provided for in this Section VII 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.
SECTION VIII. Termination
This Agreement shall be subject to termination by notice
given by the Underwriters to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing
Date, (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq
Stock Market, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading
of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall
have been declared by either federal or New York State
authorities or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the Underwriters' judgment, is
material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in the Underwriters'
judgment, impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus.
SECTION IX. Miscellaneous
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or
refuse to purchase Shares that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of
the aggregate number of Shares to be purchased on such date, the
other Underwriters shall be obligated severally in the
proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate
number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the
non-defaulting Underwriters may specify, to purchase the Shares
which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided, however,
that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to Section II be increased
pursuant to this Section IX by an amount in excess of one-ninth
of such number of Shares without the written consent of such
Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares which
it or they have agreed to purchase hereunder on such date and the
aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the number of Firm
Shares to be purchased on such date and arrangements satisfactory
to the non-defaulting Underwriters and the Company for the
purchase of such Firm Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or of the Company. In
any such case either the Underwriters or the Company shall have
the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if
any, in the Prospectus or in any other documents or arrangements
may be effected. If, on the Option Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect
to which such default occurs in more than one-tenth of the
aggregate number of Additional Shares to be purchased, the non-defaulting
Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase
in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under
this Agreement.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement,
the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering
contemplated hereunder; and such termination shall be without
liability of any party to any other party except as provided in
Section IX, Section VII and in Section 6.5.
Section VII, this Section IX and all representations,
warranties, covenants and agreements contained in this Agreement,
or in certificates of officers of the Company submitted
hereunder, shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement; (ii) any
investigation made by or on behalf of the Underwriters or any
person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any other person
controlling the Company; and (iii) acceptance of payment for any
of the Shares.
All communication hereunder will be in writing and, if sent
to any Underwriter, will be sent to it by registered mail,
overnight courier or facsimile, c/o Morgan Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (facsimile
no.: (000) 000-0000), Attention: Xxxxxx X'Xxxxx, and if sent to
the Company, will be sent to it by registered mail, overnight
courier or facsimile at 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000 (facsimile no.: (000) 000-0000), Attention: Treasurer.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
Very truly yours,
DOMINION RESOURCES, INC.
By /s/G. XXXXX XXXXXX
Name: G. Xxxxx Xxxxxx
Title: Vice President and Treasurer
Agreed, this 14th day of
January, 1998
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
AS REPRESENTATIVES
Acting severally on behalf
of themselves and the
several Underwriters
named herein.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By /s/XXXXX XXXX
Name: Xxxxx Xxxx
Title: Principal
Schedule I
Underwriter Number of Firm Shares
Xxxxxx Xxxxxxx & Co. Incorporated 1,336,250
Xxxxxx Brothers Inc. 1,336,250
Xxxxxxx Lynch, Pierce, Xxxxxx 1,336,250
& Xxxxx Incorporated
X.X. Xxxxxx Securities Inc. 1,336,250
X.X. Xxxxxxx & Sons, Inc. 165,000
Xxxxxx Xxxx LLC 165,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 165,000
Xxxxxx X. Xxxxx & Co., L.P. 165,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 165,000
Xxxxx & Xxxxxxxxxxxx, Inc. 165,000
Wheat, First Securities, Inc. 165,000
Total: 6,500,000
