CONSOLIDATED NATURAL GAS COMPANY
__________ Senior Notes Due __________
UNDERWRITING AGREEMENT
____________, _____
________________________
________________________
________________________
as Representatives for the Underwriters
listed in Schedule I to this Agreement
________________________
________________________
________________________
________________________
________________________
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Ladies and Gentlemen:
The undersigned, Consolidated Natural Gas Company (the Company), hereby
confirms its agreement with the several Underwriters named in Schedule I hereto
(the Agreement) with respect to the sale to the several Underwriters of certain
of its Senior Notes (the Senior Notes) specified in Schedule II hereto, and the
public offering thereof by the several Underwriters, upon the terms specified in
Schedule II hereto.
1. Underwriters and Representatives. The term "Underwriters" as used
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herein shall be deemed to mean the several persons, firms or corporations
(including the Representatives hereinafter mentioned) named in Schedule I
hereto, and the term "Representatives" as used herein shall be deemed to mean
the Representatives to whom this Agreement is addressed, who by signing this
Agreement represent that they have 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 as an
addressee above, the term "Representatives" as used
herein shall mean that person, firm or corporation. If there shall be only one
person, firm or corporation named in Schedule I hereto, the term "Underwriters"
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 Representatives will be binding upon all
the Underwriters.
2. Description of the Senior Notes. Schedule II specifies the aggregate
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principal amount of the Senior Notes, the initial public offering price of the
Senior Notes, the purchase price to be paid by the Underwriters, and any
concession from the initial public offering price to be allowed to dealers or
brokers, and sets forth the date, time and manner of delivery of the Senior
Notes and payment therefor. Schedule II also specifies (to the extent not set
forth in the Registration Statement and Prospectus referred to below) the terms
and provisions for the purchase of such Senior Notes. The Senior Notes will be
issued under the Indenture dated as of April 1, 2001 between the Company and
Bank One Trust Company, National Association, as trustee (the Trustee), as
previously supplemented and as further supplemented by a _____ Supplemental
Indenture dated as of __________, ____, (collectively, the Indenture).
3. Representations and Warranties of the Company. The Company represents
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and warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. 333-_____, for the registration of
the Senior Notes 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 Senior Notes included in the Registration
Statement, which prospectus is now proposed to be supplemented by a
prospectus supplement relating to the Senior Notes 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" 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 or Prospectus and incorporated therein
by reference from the date of filing of such incorporated documents
(collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus
has been issued by the Commission and is in effect and no proceedings for
that purpose are pending before or, to the knowledge of the Company,
threatened by the Commission. The Registration Statement and the Prospectus
comply in all material respects with the provisions of the Securities Act,
the Securities Exchange Act of 1934, as amended (the Securities Exchange
Act), the Trust Indenture Act of 1939, as amended (the Trust Indenture
Act), and the rules, regulations and releases of the Commission promulgated
thereunder (the Rules and Regulations) and,
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neither the 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 omitted 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 the Company by the Underwriters or on the
Underwriters' behalf through the Representatives 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 the Company and its
subsidiaries taken as a whole, financial or otherwise (a Material Adverse
Effect). The Company 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 the
Company's financial statements filed with the Commission and incorporated
by reference in the Registration Statement, PricewaterhouseCoopers LLP, who
have certified certain of the Company's financial statements filed with the
Commission and incorporated by reference in the Registration Statement, and
Ernst & Young LLP, who have certified certain of Xxxxx Xxxxxxx 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) The Peoples Natural Gas Company, The East Ohio Gas Company,
Dominion Exploration & Production, Inc., Dominion Oklahoma Texas
Exploration &
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Production, Inc. and Dominion Transmission, Inc. are the only Significant
Subsidiaries of the Company as such term is defined in Rule 1-02 of
Regulation S-X. All of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable, and the capital stock of each Significant
Subsidiary is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, claim,
encumbrance or equitable right.
(f) The execution, delivery and performance of this Agreement, the
Indenture and the Senior Notes and the consummation of the transactions
contemplated in this Agreement and in the Registration Statement (including
the issuance and sale of the Senior Notes and the use of the proceeds from
the sale of the Senior Notes as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement, the Indenture and the Senior Notes 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 the Company 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 the Company 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 the Company 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 the Company 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 the Company or any subsidiary or any of their respective
properties, assets or operations, and the Company has full power and
authority to authorize, issue and sell the Senior Notes as contemplated by
this Agreement.
(g) The Company is not, and, after giving effect to the offering and
sale of the Senior Notes and 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, the Company agrees to sell to each of the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the price, place and time hereinafter specified, the principal amount of the
Senior Notes set forth opposite the name of such Underwriter in Schedule I
hereto. The Underwriters agree to make a public offering of their respective
Senior Notes specified in Schedule I hereto at the initial public offering price
specified in Schedule II hereto. It is understood that after such initial
offering, the offering prices and other selling terms may from time to time be
varied by the Underwriters.
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5. Time and Place of Closing. Delivery of the Senior Notes to, and
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payment therefor by, the Representatives for the accounts of the several
Underwriters shall be made at the time, place and date specified in Schedule II
or such other time, place and date as the Representatives and the Company may
agree upon in writing, and subject to the provisions of Section 10 hereof. The
hour and date of such delivery and payment are herein called the "Closing Date".
Unless otherwise specified in Schedule II hereto, payment for the Senior Notes
shall be made by wire transfer of immediately available funds to the Company's
account on the Closing Date against delivery of the Senior Notes, in fully
registered form, registered in the name of Cede & Co., as nominee for The
Depository Trust Company. The form of certificate(s) for the Senior Notes will
be made available at the location specified on Schedule II for examination by
the Representatives not later than 12:00 noon, New York time, on the last
business day prior to the Closing Date.
6. Covenants of the Company. The Company agrees with each of the
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Underwriters that:
(a) If the Representatives so request, the Company, on or prior to
the Closing Date, will deliver to the Representatives 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
Representatives. The Representatives will be deemed to have made such a
request for copies for each of the several Underwriters and Xxxxxxxx
Xxxxxxx LLP, counsel to the Underwriters, with respect to any such
documents that are not electronically available through the Commission's
XXXXX filing system.
(b) The Company will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus,
(ii) the preparation, issuance and delivery of the Senior Notes, (iii) any
fees and expenses of the Trustee and (iv) the printing and delivery to the
Underwriters in reasonable quantities of copies of the Registration
Statement and the Prospectus (each as originally filed and as subsequently
amended). The Company also will pay all taxes, if any, on the issuance of
the Senior Notes. In addition, the Company will pay the reasonable out of
pocket fees and disbursements of Underwriters' outside counsel, Xxxxxxxx
Xxxxxxx LLP, in connection with the qualification of the Senior Notes under
state securities or blue sky laws or investment laws (if and to the extent
such qualification is required by the Underwriters or the Company).
(c) If, during the time when a prospectus relating to the Senior
Notes is required to be delivered under the Securities 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 Securities
Act, the Company promptly will (i) notify the Underwriters through the
Representatives to suspend solicitation of purchases of
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the Senior Notes 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, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under
the Securities Exchange Act and the applicable rules and regulations of the
Commission thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof to the
Representatives and Xxxxxxxx Xxxxxxx LLP. Unless the Company has received
notice to the contrary, it will have no further obligations under the
proviso to the preceding sentence after the Closing Date.
(d) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(e) The Company will make generally available to its security
holders, as soon as it is practicable to do so, an earnings statement of
the Company (which need not be audited) in reasonable detail, covering a
period of at least 12 months beginning within three months after the
Effective Date, which earnings statement shall satisfy the requirements of
Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Senior Notes
for offer and sale under the securities or blue sky laws of such states as
the Representatives may designate; provided, however, that the Company
shall not be required in any state to qualify as a foreign corporation, or
to file a general consent to service of process, or to submit to any
requirements which it deems unduly burdensome.
(g) Fees and disbursements of Xxxxxxxx Xxxxxxx LLP who are acting as
counsel for the Underwriters (exclusive of fees and disbursements of such
counsel which are to be paid as set forth in Section 6(b)), shall be paid
by the Underwriters; provided, however, that if this Agreement is
terminated in accordance with the provisions of Sections 7 or 8 hereof, the
Company shall reimburse the Representatives for the account of the
Underwriters for the amount of such fees and disbursements.
(h) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, the Company will not, without
the prior written consent of the Representatives, directly or indirectly,
sell or offer to sell or otherwise
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dispose of any Senior Notes or any security convertible into or
exchangeable for the Senior Notes or any debt securities substantially
similar to the Senior Notes (except for the Senior Notes issued pursuant to
this Agreement).
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
Senior Notes shall be subject to the following conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date.
The Representatives shall have received, prior to payment for the
Senior Notes, a certificate dated the Closing Date and signed by the
President or any Vice President of the Company to the effect that no
such stop order is in effect and that no proceedings for such purpose
are pending before or, to the knowledge of the Company, threatened by
the Commission.
(ii) On the Closing Date an order or orders of the Commission
pursuant to the Public Utility Holding Company Act of 1935, as
amended, permitting the issuance and sale of the Senior Notes shall be
in full force and effect and all provisions of such order or orders
hereafter entered are deemed acceptable to the Representatives and the
Company, unless within 24 hours after receiving a copy of any such
order either shall give notice to the other to the effect that such
order contains an unacceptable provision.
(iii) On the Closing Date the Representatives shall receive, on
behalf of the several Underwriters, the opinions of Xxxxxxxx Xxxxxxx
LLP, counsel to the Underwriters, McGuireWoods LLP, counsel to the
Company, and the Company's General Counsel, substantially in the forms
attached hereto as Schedules III, IV and V, respectively, all in form
and substance satisfactory to the Representatives.
(iv) The Representatives shall have received the following
letters addressed to the Representatives 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: (A) letters from Deloitte & Touche LLP, dated
the date of this Agreement and dated the Closing Date, with respect to
the Company and (B) a letter from PricewaterhouseCoopers LLP, dated
the date of this Agreement, with respect to the Company for periods
ending not later than December 31, 1999.
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(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), there shall not have occurred (1)
any change in the long-term debt of the Company that is pari passu
with the Senior Notes (other than a decrease in the aggregate
principal amount thereof outstanding), (2) any material adverse change
in the general affairs, financial condition or earnings of the Company
and its subsidiaries taken as a whole or (3) any material transaction
entered into by the Company 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 Representatives is so
material and so adverse that it makes it impracticable to proceed with
the public offering or delivery of the Senior Notes on the terms and
in the manner contemplated in the Prospectus and this Agreement, or
(B) there shall not have occurred (1) a downgrading in the rating
accorded the Company's senior unsecured debt, or securities that are
pari passu to the Company's senior unsecured debt, 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 the Company or of Dominion Resources,
Inc. 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, 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;
provided, the effect of such outbreak, escalation, declaration,
calamity, crisis or material adverse change shall, in the reasonable
judgment of the Representatives, make it impracticable to proceed with
the public offering or delivery of the Senior Notes on the terms and
in the manner contemplated in the Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and warranties of
the Company in this Agreement shall be true and correct as if made on
and as of such date, and the Company shall have performed all
obligations and satisfied all conditions required of it under this
Agreement; and, on the Closing Date, the Representatives shall have
received a certificate to such effect signed by the President or any
Vice President of the Company.
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(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Senior Notes shall have been satisfactory in
form and substance to Xxxxxxxx Xxxxxxx LLP.
(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
Representatives upon mailing or delivering written notice thereof to the
Company; provided, however, that in case the conditions specified in
subsections 7(a)(v) and (vi) shall not have been fulfilled, this Agreement
may not be so terminated by the Representatives unless Underwriters who
have agreed to purchase in the aggregate 50% or more of the aggregate
principal amount of the Senior Notes 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 Representatives
pursuant to Section 7(b) above or because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters, severally, for all out-
of-pocket expenses (in addition to the fees and disbursements of their
outside counsel as provided in Section 6(g)) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder and, upon such reimbursement, the Company shall be absolved from
any further liability hereunder, except as provided in Section 6(b) and
Section 9.
8. Conditions of the Obligation of the Company. The obligation of the
-------------------------------------------
Company to deliver the Senior Notes 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 terminated by
the Company by mailing or delivering written notice thereof to the
Representatives. 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) The Company agrees to indemnify
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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
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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
date hereof), 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 indemnity 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 Senior Notes by such Underwriter to any person if it shall be
established that a copy of the Prospectus, excluding any documents incorporated
by reference (as supplemented or amended, if the Company shall have made any
supplements or amendments which have been furnished to the Representatives),
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 the Company
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 the Company by or
on behalf of any Underwriter for use in the Registration Statement or any
amendment thereto, in the Prospectus or any supplement thereto, or in any
preliminary Prospectus. The indemnity agreement of the Company contained in this
Section 9(a) and the representations and warranties of the Company contained in
Section 3 hereof shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the Senior Notes.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, 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 date hereof), or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for
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use in the Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or any preliminary Prospectus. The indemnity
agreement of the respective Underwriters contained in this Section 9(b) shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such controlling person, and shall
survive the delivery of the Senior Notes.
(c) The Company and each of the Underwriters agree that, upon the receipt
of notice of the commencement of any action against the Company or any of its
officers or directors, or any person controlling the Company, or against such
Underwriter or controlling person as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to notify
such indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants
(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 and direct such different or
additional legal defenses and to participate otherwise in the defense of such
action on behalf of such indemnified party. The indemnifying party shall bear
the reasonable fees and expenses of outside counsel retained by the indemnified
party if (i) the indemnified party shall have retained such counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel (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
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may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such a proceeding), unless such settlement (x) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (y) 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 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 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 Company 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 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 the obligations of the Underwriters to purchase and
-----------
pay for the Senior Notes under Section 7 have been satisfied and if any one or
more of the Underwriters shall fail or refuse to purchase the Senior Notes which
it or they have agreed to purchase hereunder, and the aggregate principal amount
of the Senior Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Senior Notes, then the other Underwriters shall be
obligated severally in the proportions which the principal amount of the Senior
Notes set forth opposite their respective names in Schedule I bears to the
aggregate underwriting obligations of all non-defaulting Underwriters, or in
such other proportions as the Underwriters may specify, to purchase the Senior
Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase. If any Underwriter
-12-
or Underwriters shall so fail or refuse to purchase Senior Notes and the
aggregate principal amount of the Senior Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Senior Notes and arrangements satisfactory to the Underwriters and the Company
for the purchase of such Senior Notes are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter (except as provided in Section 6(g) and Section 9) or of
the Company (except as provided in Section 6(b) and Section 9). In any such case
not involving a termination, either the Representatives or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
11. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive
delivery of the Senior Notes.
12. Miscellaneous. The validity and interpretation of this Agreement shall
-------------
be governed by the laws of the State of New York. This Agreement shall inure to
the benefit of the Company, the Underwriters and, with respect to the provisions
of Section 9 hereof, each controlling person and each officer and director of
the Company referred to in Section 9, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such, of any of the Senior Notes from any of
the several Underwriters.
13. Notices. All communications hereunder shall be in writing and if to
-------
the Underwriters shall be mailed, faxed or delivered to the Representatives at
the address set forth on Schedule II hereto, or if to the Company shall be
mailed, faxed or delivered to it, attention of Treasurer, Consolidated Natural
Gas Company, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (facsimile number:
(000) 000-0000).
-13-
Please sign and return to us a counterpart of this letter, whereupon
this letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
CONSOLIDATED NATURAL GAS COMPANY
By:_________________________________
Name:
Title:
-14-
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above written,
by each acting severally on behalf of itself
and for the several Underwriters named herein.
_____________________________________
By: ________________________________
Authorized Signatory
Name:
Title:
-15-
SCHEDULE I
Principal Amount
of Series __ Senior Notes to
Underwriter be Purchased
----------- ------------------------
___________
Total: $
I-1
SCHEDULE II
Title of Senior Notes:
..
Aggregate Principal Amount:
..
Initial Price to Public:
..
Initial Purchase Price to be paid by Underwriters:
..
Time of Delivery for Senior Notes: _______________________
Closing Location: One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
The Senior Notes will be available for inspection by the
Representatives at:
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Address for Notices to the Underwriters:
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
with a copy of any notice pursuant to Section 9(c) also sent to:
Xxxxxxxx Xxxxxxx LLP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: F. Xxxxxxxxx Xxxxxxxx, Xx., Esquire
facsimile: (000) 000-0000
II-1
SCHEDULE III
PROPOSED FORM OF OPINION
OF
XXXXXXXX XXXXXXX LLP
Bank of America Center
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: CONSOLIDATED NATURAL GAS COMPANY
200__ Series __ __% Senior Notes Due ________, ______
________,__
__________________________
__________________________
__________________________
__________________________
as Representatives for the Underwriters
listed in Schedule I to the Underwriting Agreement
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
Ladies and Gentlemen:
We have acted as counsel for you in connection with arrangements
for the issuance by Consolidated Natural Gas Company (the Company) of up to U.S.
$___ million aggregate principal amount of its 200_ Series __ __% Senior Notes
Due __________, ____ (the Senior Notes), under and pursuant to an Indenture
dated as of April 1, 2001, between the Company and Bank One Trust Company,
National Association, as trustee (the Trustee), as previously supplemented and
as to be further supplemented (as so supplemented, the Indenture), and the
offering of the Senior Notes by you pursuant to an Underwriting Agreement dated
__________,
III-1
____, by and between you and the Company (the Underwriting Agreement). All terms
not otherwise defined herein shall have the meanings set forth in the
Underwriting Agreement.
We have examined originals, or copies certified to our
satisfaction of such corporate records of the Company, indentures, agreements
and other instruments, certificates of public officials, certificates of
officers and representatives of the Company and of the Trustee, and other
documents, as we have deemed necessary as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement hereinafter
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Underwriting Agreement have been
satisfactory to us.
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, One Xxxxx Center, Richmond, Virginia, at which the Company
satisfied the conditions contained in Section 7 of the Underwriting Agreement
that are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal
considerations that we deem relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated and existing
as a corporation in good standing under the laws of Delaware, and has the
corporate power to transact its business as described in the Prospectus.
2. An appropriate order of the Securities and Exchange Commission
(the Commission) with respect to the sale of the Senior Notes 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 Senior Notes 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 Senior Notes 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 Senior Notes in such states) and the carrying
out of the provisions of the Underwriting Agreement.
3. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by the
Company.
4. The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust Indenture
Act and constitutes a valid and binding obligation of the Company, 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).
5. The Senior Notes have been duly authorized and executed by
the Company and when 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 the
Company entitled to the benefits provided by the Indenture, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
III-2
6. The Registration Statement with respect to the Senior Notes
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
Senior Notes in the manner therein specified.
7. The Registration Statement and the Prospectus (except that
we express no comment or belief with respect to any historical or pro forma
financial statements and schedules and other financial or statistical
information contained or incorporated by reference 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.
8. As to the statements relating to the Senior Notes under
DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR DEBT SECURITIES in
the prospectus filed as part of the Registration Statement, as supplemented by
the statements under DESCRIPTION OF THE SENIOR NOTES in the Prospectus
Supplement dated _______, 20__, we are of the opinion that the statements are
accurate and do not omit any material fact required to be stated therein or
necessary to make such statements not misleading.
As to the statistical statements in the Registration Statement
(which includes statistical statements in the Incorporated Documents), we have
relied solely on the officers of the Company. 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 the
preceding paragraph in regard to the captions set forth in such preceding
paragraph. We note 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 Registration Statement, the Prospectus as it was
initially issued and as has been supplemented or amended, 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 contained on the date
the Registration Statement became effective, or the Prospectus contained on the
date it was issued or the date it was supplemented or amended, or that the
Registration Statement or the Prospectus (in all cases, excepting the financial
statements and schedules and other financial information contained or
incorporated therein by reference and any pro forma financial information (and
notes thereto) included or incorporated by reference therein, as to which we
express no belief) contains on the date hereof, any untrue statement of a
material fact or omitted or omits on the date hereof, to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The foregoing assurance is provided 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 prior to the date of the Underwriting
Agreement.
III-3
We do not purport to express an opinion on any laws other than
those of the Commonwealth of Virginia, the State of Delaware, 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,
XXXXXXXX XXXXXXX LLP
III-4
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: CONSOLIDATED NATURAL GAS COMPANY
200_ Series __ ___% Senior Notes Due __________, ____
__________, ____
_______________________________
_______________________________
_______________________________
_______________________________
as Representatives for the Underwriters
listed in Schedule I to the Underwriting Agreement
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $____ million
aggregate principal amount of 200_ Series __ ___% Senior Notes Due __________,
____ (the Senior Notes), of Consolidated Natural Gas Company (the Company),
under and pursuant to an Indenture dated as of April 1, 2001, between the
Company and Bank One Trust Company, National Association, as trustee (the
Trustee), as previously supplemented and as to be further supplemented (as so
supplemented, the Indenture), and pursuant to an Underwriting Agreement dated
__________, ____, by and between the Company and the Underwriters listed on
Schedule I attached thereto (the
IV-1
Underwriting Agreement), have been taken under our supervision as counsel for
the Company. Terms not otherwise defined herein have the meanings set forth in
the Underwriting Agreement.
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, indentures, agreements,
and other instruments, certificates of public officials, certificates of
officers and representatives of the Company and of the Trustee, and other
documents, as we have deemed 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 the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement hereinafter
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Underwriting Agreement have been
satisfactory to us.
Based upon the foregoing and having regard for legal
considerations that we deem relevant, 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, as amended, 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 by the Company or for the offering, issuance, sale
or delivery of the Senior Notes. An appropriate order of the Commission with
respect to the sale of the Senior Notes 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
Senior Notes as contemplated by the Underwriting Agreement.
2. The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust Indenture Act
and constitutes a valid and binding obligation of the Company, except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless whether enforcement is in a proceeding in equity or at law).
3. The Senior Notes have been duly authorized and executed by
the Company and, when completed and authenticated by the Trustee in accordance
with, and in the form contemplated by, the Indenture and issued, delivered and
paid for in accordance with the Underwriting Agreement, will have been duly
issued under the Indenture and will constitute valid and binding obligations of
the Company entitled to the benefits provided by the Indenture, except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless whether enforcement is in a proceeding in equity or at law).
IV-2
4. The Registration Statement with respect with respect to the
Senior Notes 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 Senior Notes in the manner therein specified.
5. 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 historical or pro forma financial statements and schedules and
other financial or statistical information contained in the Registration
Statement or Prospectus).
6. We are of the opinion that the statements relating to the
Senior Notes contained in the prospectus filed as part of the Registration
Statement under DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF SENIOR
DEBT SECURITIES, as supplemented by the statements under DESCRIPTION OF THE
SENIOR NOTES in the Prospectus Supplement dated __________, ____, are
substantially accurate and fair.
We have participated in conferences with officers and other
representatives of the Company 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 the Company to inform
them of the disclosure requirements of the Securities Act. We have examined
various reports, records, contracts and other documents of the Company and
orders and instruments of public officials, which our investigation led us to
deem pertinent. In addition, we attended the due diligence meetings with
representatives of the Company and the closing at which the Company satisfied
the conditions contained in Section 7 of the Underwriting Agreement. We have
not, however, undertaken to make any independent review of the other records of
the Company which our investigation did not lead us to deem pertinent. As to the
statistical statements in the Registration Statement (which includes the
Incorporated Documents), we have relied solely on the officers of the Company.
We accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement, except as stated above in the
preceding paragraph in regard to the captions set forth in such preceding
paragraph. 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 the
Registration Statement became effective, or the Prospectus, contained on the
date it was issued, or that the Registration Statement or the Prospectus (in
each case, except with respect to the financial statements and schedules and
other financial information contained or incorporated by reference in the
Registration) contains on the date hereof, any untrue statement of a material
fact or omitted on such date or omits on the date hereof, to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The foregoing assurance is provided on the basis that any
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or
IV-3
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 prior to the date 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 Delaware, 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
IV-4
SCHEDULE V
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
CONSOLIDATED NATURAL GAS COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: CONSOLIDATED NATURAL GAS COMPANY
200_ Series __ ___% Senior Notes Due __________, _____
__________, ____
___________________________
___________________________
___________________________
___________________________
as Representatives for the Underwriters
listed in Schedule I to the Underwriting Agreement
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $___ million
aggregate principal amount of 200_ Series __ ___% Senior Notes Due __________,
____ (the Senior Notes), of Consolidated Natural Gas Company (the Company),
under and pursuant to an Indenture dated as of April 1,
V-1
2001, between the Company and Bank One Trust Company, National Association, as
trustee (the Trustee), as previously supplemented and as to be further
supplemented (as so supplemented, the Indenture), and pursuant to an
Underwriting Agreement dated __________, ____, by and between the Company and
the Underwriters listed on Schedule I attached thereto (the Underwriting
Agreement), have been taken under my supervision as Vice President and General
Counsel of the Company. Terms not otherwise defined herein have the meanings set
forth in the Underwriting Agreement.
As Vice President and General Counsel of the Company, I have
general responsibility over the attorneys within the Company's Legal Department
responsible for rendering legal counsel to the Company regarding corporate,
financial, securities, and other matters. I am generally familiar with the
organization, business and affairs of the Company. I am also familiar with the
proceedings taken and proposed to be taken by the Company in connection with the
offering and sale of the Senior Notes, and I have examined such corporate
records, certificates and other 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 Senior Notes. 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. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware, 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, the Senior Notes and
the Indenture; and the Company 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 the Company 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 the Company.
V-2
4. There are no actions, suits or proceedings pending or, to
the best of my knowledge, threatened, to which the Company or one of its
subsidiaries is a party or to which any of the Company'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 the Company 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,
except as to the opinion provided herein as to the due incorporation of the
Company under the laws of the State of Delaware, 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 in the opinions expressed herein
resulting from matters that may hereinafter arise or that may hereinafter be
brought to my attention.
Yours very truly,
V-3
