Exhibit 1(v)
DOMINION RESOURCES, INC.
Stock Purchase Units
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
Dominion Resources Inc., a Virginia corporation (the Company), confirms its
agreement with [Name of Underwriter] (the Underwriter), with respect to the
issue and sale by the Company and purchase by the Underwriter of ______ Stock
Purchase Units (SPUS) (the Firm SPUS). In addition, the Company proposes to
grant to the Underwriter an option to purchase up to an additional _____ SPUS on
the terms and for the purposes set forth in Section 2 (the Option SPUS). The
Firm SPUS and the Option SPUS, if purchased, are hereinafter collectively called
the SPUS. Capitalized terms used herein without definition shall be used as
defined in the Prospectus (as hereinafter defined).
Each SPUS will initially consist of a unit (a Corporate SPUS) comprised of
(a) a stock purchase contract (a Purchase Contract) under which (i) the holder
will purchase from the Company no later than [ ], 200__, for $__, a number of
shares of common stock, no par value, of the Company (the Common Stock), equal
to the Settlement Rate as set forth in the Purchase Contract Agreement (as
hereinafter defined) and (ii) the Company will pay to the holder contract
adjustment payments and (b) a share of the Company's Series __ Preferred Stock,
liquidation preference $__ per share (the Preferred Stock). In accordance with
the terms of a Purchase Contract Agreement (the Purchase Contract Agreement) to
be entered into between the Company and [Name of Purchase Contract Agent ], as
Purchase Contract Agent (the Purchase Contract Agent), the holders of the SPUS
will pledge the Preferred Stock to [Name of Collateral Agent], as Collateral
Agent (the Collateral Agent), pursuant to a Pledge Agreement (the Pledge
Agreement) to be entered into among the Company, the Purchase Contract Agent,
[Name of Securities Intermediary], as Securities Intermediary (the Securities
Intermediary), and the
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Collateral Agent, to secure the holders' obligations to purchase Common Stock
under the Purchase Contracts.
This is to confirm the agreement concerning the purchase of the SPUS by the
Underwriter.
1. Representations, Warranties And Agreements Of The Company. The Company
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represents, warrants and agrees that:
(a) A registration statement, No. 333-______ on Form S-3 for the registration
of the SPUS and certain other securities of the Company under the Securities Act
of 1933, as amended (the Securities Act), heretofore filed with the Securities
and Exchange Commission (the Commission), a copy of which as so filed has been
delivered to you, has become effective. The registration statement, including
all exhibits thereto, as amended through the date hereof, is hereinafter
referred to as the "Registration Statement"; the prospectus relating to the SPUS
and other securities included in the Registration Statement, which prospectus is
now proposed to be supplemented by a supplement relating to the SPUS to be filed
with the Commission under the Securities Act, as so supplemented, is hereinafter
referred to as the "Prospectus". As used herein, the terms "Registration
Statement", "prospectus" and "Prospectus" include all documents (including any
Current Report on Form 8-K) incorporated therein by reference, and shall include
any documents (including any Current Report on Form 8-K) filed after the date of
such Registration Statement, prospectus or Prospectus and incorporated therein
by reference from the date of filing of such incorporated documents
(collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration Statement or
otherwise preventing or suspending the use of the Prospectus has been issued by
the Commission and is in effect and no proceedings for that purpose are pending
before or, to the knowledge of the Company, threatened by the Commission. The
Registration Statement and the Prospectus comply in all material respects with
the provisions of the Securities Act, the Securities Exchange Act of 1934, as
amended (the Securities Exchange Act), and the rules, regulations and releases
of the Commission thereunder (the Rules and Regulations) and, on the date
hereof, neither the Registration Statement nor the Prospectus contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and,
on the Delivery Date, the Registration Statement and the Prospectus (including
any amendments and supplements thereto) will conform in all respects to the
requirements of the Securities Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, that the foregoing representations
and warranties in this Section 1(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
Underwriter or on the Underwriter's behalf for use in the Registration Statement
or Prospectus; and provided, further, that the foregoing representations and
warranties are given on the basis that any 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.
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(c) The shares of Common Stock to be issued and sold by the Company pursuant
to the Purchase Contracts have been duly and validly authorized and reserved for
issuance and, when issued and delivered in accordance with the provisions of the
Purchase Contracts, will be duly and validly issued, fully paid and non-
assessable and will not be subject to any preemptive rights of any person.
(d) The Corporate SPUS have been duly authorized by the Company, and when
duly executed by the Company (assuming due execution by the Purchase Contract
Agent as attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent) and delivered by the Company and upon payment therefor
as set forth herein, will be duly and validly issued and outstanding, and will
constitute valid and binding obligations of the Company entitled to the benefits
of the Purchase Contract Agreement and enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), 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) (the Bankruptcy Exceptions) and an implied covenant of good
faith and fair dealing.
(e) The shares of Preferred Stock have been duly authorized by the Company
and, when issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and will not be
subject to any preemptive rights of any person.
(f) The Purchase Contract Agreement has been duly authorized by the Company
and, when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Purchase Contract Agent) and delivered by the
Company, will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(g) The Pledge Agreement has been duly authorized by the Company and, when
duly executed by the proper officers of the Company (assuming due execution and
delivery by the Purchase Contract Agent, the Securities Intermediary and the
Collateral Agent) and delivered by the Company, will constitute a valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by the
Bankruptcy Exceptions and an implied covenant of good faith and fair dealing.
(h) This Agreement has been duly authorized, executed and delivered by the
Company; and the Remarketing Agreement (the Remarketing Agreement) to be entered
into by the Company and Underwriter as Remarketing Agent, has been duly
authorized by the Company and, when executed and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as the
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enforcement thereof may be limited by the Bankruptcy Exceptions, an implied
covenant of good faith and fair dealing and public policy considerations.
(i) The Corporate SPUS, the Preferred Stock, the Common Stock to be issued
and sold pursuant to the Purchase Contracts, the Purchase Contract Agreement,
the Pledge Agreement and the Remarketing Agreement, when the Corporate SPUS are
delivered pursuant to this Agreement, will conform to the descriptions thereof
contained in the Prospectus.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
there has been no material adverse change in the condition of the Company,
financial or otherwise (Material Adverse Effect).
(k) The Company has been duly organized and is validly existing as a
corporation, is in good standing under the laws of its jurisdiction and has all
necessary corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; 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 so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(l) (i) The execution, delivery and performance of this Agreement and the
issuance and sale of the SPUS will not result in a material breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company or any Significant Subsidiary (as
defined in Rule 1-01(w) of Regulation S-X) or any of their properties or any
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the properties of the Company is subject, or the
articles of incorporation or bylaws of the Company, and the Company has full
power and authority to authorize, issue and sell the SPUS as contemplated by
this Agreement.
(ii) All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and non-
assessable and, the common capital stock is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
2. Purchase Of The Spus By The Underwriter. On the basis of the
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representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell _____ Firm SPUS to the
Underwriter and the Underwriter agrees to purchase ______ Firm SPUS.
In addition, the Company grants to the Underwriter an option to purchase up to
_____ Option SPUS. Such option is granted solely for the purpose of covering
over-allotments in the sale of the Firm SPUS and is exercisable as provided in
Section 4 hereof.
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The price of both the Firm SPUS and any Option SPUS shall be $[ ] per SPUS.
The Company shall not be obligated to deliver any of the SPUS to be delivered
on the First Delivery Date (as hereinafter defined) or the Second Delivery Date
(as hereinafter defined), as the case may be, except upon payment for all the
SPUS to be purchased on such Delivery Date as provided herein.
3. Public Offering. The Underwriter proposes to offer the Firm SPUS for sale
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upon the terms and conditions set forth in the Prospectus.
4. Time and Place of Closing. Delivery of and payment for the SPUS shall be
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made at the office of [LOCATION], at 10:00 A.M., New York City time, on the
third full business day following the date of this Agreement (unless the sale of
the SPUS hereunder has been priced after 4:30 p.m. Eastern time on the date of
this Agreement, in which case the fourth full business day following the date of
this Agreement) or at such other date or place as shall be determined by
agreement between the Underwriter and the Company. This date and time are
sometimes referred to as the First Delivery Date. On the First Delivery Date,
the Company, through the facilities of The Depository Trust Company (DTC), shall
deliver or cause to be delivered a securities entitlement with respect to the
Firm SPUS to the Underwriter against payment to or upon the order of the Company
of the purchase price by wire transfer of immediately available funds to a bank
account designated by the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. Upon delivery, the Firm SPUS
shall be registered in the name of Cede & Co., as nominee for DTC.
At any time on or before the thirtieth day after the date of this Agreement
the option granted in Section 2 may be exercised by written notice being given
to the Company by the Underwriter. Such notice shall set forth the aggregate
number of Option SPUS as to which the option is being exercised, the names in
which the Option SPUS are to be registered, the denominations in which the
Option SPUS are to be issued and the date and time, as determined by the
Underwriter, when the Option SPUS are to be delivered; PROVIDED, HOWEVER, that
this date and time shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option SPUS are
delivered are sometimes referred to as the Second Delivery Date and the First
Delivery Date and the Second Delivery Date are sometimes each referred to as a
Delivery Date.
Delivery of and payment for the Option SPUS shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Underwriter and
the Company) at 10:00 A.M., New York City time, on the Second Delivery Date. On
the Second Delivery Date, the Company, through the facilities of DTC, shall
deliver or cause to be delivered a securities entitlement with respect to the
Option SPUS to the Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer of immediately available funds to
a bank account designated by the Company. Time shall be of the essence, and
delivery at the time and place specified
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pursuant to this Agreement is a further condition of the obligation of the
Underwriter hereunder. Upon delivery, the Option SPUS shall be registered in the
name of Cede & Co., as nominee of DTC.
The Preferred Stock underlying the SPUS will be pledged with the Collateral
Agent to secure the holders' obligations to purchase Common Stock under the
Purchase Contracts. Such pledge shall be effected by the transfer to the
Securities Intermediary of the Preferred Stock to be pledged to the Collateral
Agent in accordance with the Pledge Agreement.
5. Covenants of the Company. The Company agrees that:
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(a) The Company, at or prior to the Delivery Date, will deliver to the
Underwriter 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 Underwriter.
(b) The Company will pay all expenses in connection with (i) the preparation
and filing by it of the Registration Statement, any related preliminary
prospectus supplement and the Prospectus and the printing of this Agreement,
(ii) the costs incident to the authorization, issuance, sale and delivery of the
Preferred Stock, Purchase Contracts, Common Stock to be issued and sold pursuant
to the Purchase Contracts and SPUS, (iii) the printing and delivery to the
Underwriter in reasonable quantities of copies of the Registration Statement and
the Prospectus (each as originally filed and as subsequently amended), (iv) any
applicable listing or other fees, (v) any fees charged by securities rating
services for rating the SPUS (or any related security), (vi) the fees and
expenses of the Purchase Contract Agent, the Collateral Agent, the Securities
Intermediary and their respective counsel. The Company also will pay all taxes,
if any, except transfer taxes, on the issue of the SPUS. In addition, the
Company will pay the reasonable out of pocket fees and disbursements of
Underwriter's outside counsel, [Underwriter's Counsel], in connection with the
qualification of the SPUS (or any related security) under state securities or
blue sky laws or investment laws (if and to the extent such qualification is
required by the Underwriter or the Company).
(c) If, during the time when a prospectus relating to the SPUS is required to
be delivered under the Act, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will (i) notify the Underwriter to suspend
solicitation of purchases of the SPUS and (ii) at its expense, prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. In case any
Underwriter is required to deliver a prospectus in connection with the sale of
any SPUS after the expiration of the period specified in the preceding sentence,
the Company, upon the request of the Underwriter, will furnish to the
Underwriter, at the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the
Prospectus, complying with Section 10(a) of the Securities Act. During the
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period specified in the second sentence of this Section 5(c), the Company will
continue to prepare and file with the Commission on a timely basis all documents
or amendments required under the Securities Exchange Act and the applicable
rules and regulations of the Commission thereunder; provided, that the Company
shall not file such documents or amendments without also furnishing copies
thereof to the Underwriter and [Underwriter's Counsel].
(d) The Company will advise the Underwriter promptly of any proposal to amend
or supplement the Registration Statement or the Prospectus and will afford the
Underwriter a reasonable opportunity to comment on any such proposed amendment
or supplement; and the Company will also advise the Underwriter promptly of the
filing of any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(e) The Company will make generally available to its security holders, as
soon as it is practicable to do so, an earnings statement of the Company (which
need not be audited) in reasonable detail, covering a period of at least 12
months beginning within three months after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Securities Act.
(f) The Company will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the SPUS for offer and sale under
the securities or blue sky laws of such states as the Underwriter 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) The Company will use its best efforts to cause the SPUS to be listed on
the New York Stock Exchange, subject to official notice of issuance.
(h) Fees and disbursements of [Underwriter's Counsel] who are acting as
counsel for the Underwriter (exclusive of fees and disbursements of such counsel
which are to be paid as set forth in Section 5(b)), shall be paid by the
Underwriter; provided, however, that if this Agreement is terminated in
accordance with the provisions of Sections 7 or 8 hereof, the Company shall
reimburse the Underwriter for the amount of such fees and disbursements.
6. Conditions of Underwriter's Obligations. The obligations of the
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Underwriter hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company contained
herein or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional terms and conditions:
(a) As of each Delivery Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Securities Act,
and no proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and
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any request on the part of the Commission for additional information shall have
been complied with. The Prospectus shall have been filed with the Commission.
(b) On each Delivery Date, the Underwriter shall have received the opinion,
dated as of such Delivery Date, of McGuire, Woods, Battle & Xxxxxx LLP, counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriter.
(c) On each Delivery Date, the Underwriter shall have received the opinion,
dated as of such Delivery Date, of [Underwriter's Counsel], counsel for the
Underwriter, with respect to the Registration Statement, Prospectus, the
validity of the Preferred Stock, Purchase Contract, Common Stock to be issued
pursuant to the Purchase Contracts and other related matters as the Underwriter
may reasonably request.
(d) [___ ] shall have furnished to the Underwriter its written opinion, as
counsel to [_____], as Purchase Contract Agent, dated such Delivery Date, in
form and substance satisfactory to counsel for the Underwriter, to the effect
that:
(i) The Purchase Contract Agent is duly incorporated as a [ ] banking
corporation with all necessary power and authority to execute, deliver and
perform its obligations under the Purchase Contract Agreement and the Pledge
Agreement.
(ii) The execution, delivery and performance by the Purchase Contract Agent
of the Purchase Contract Agreement and the Pledge Agreement, and the
authentication and delivery of the SPUS, have been duly authorized by all
necessary corporate action on the part of the Purchase Contract Agent. The
Purchase Contract Agreement and the Pledge Agreement have been duly executed and
delivered by the Purchase Contract Agent, and constitute the valid and binding
agreements of the Purchase Contract Agent, enforceable against the Purchase
Contract Agent in accordance with their terms, except as the enforcement thereof
may be limited by the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(iii) The execution, delivery and performance of the Purchase Contract
Agreement and the Pledge Agreement by the Purchase Contract Agent does not
conflict with or constitute a breach of the charter or by-laws of the Purchase
Contract Agent.
(iv) No consent, approval or authorization of, or registration with or
notice to, any state or federal governmental authority or agency is required for
the execution, delivery or performance by the Purchase Contract Agent of the
Purchase Contract Agreement and the Pledge Agreement.
(e) The Underwriter shall not have discovered and disclosed to the Company on
or prior to such Delivery Date that the Registration Statement or the Prospectus
or any amendment or supplement thereto contains any untrue statement of a fact
which, in the opinion of [Underwriter's Counsel], counsel for the Underwriter,
is material or omits to state any fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
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(f) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Common Stock to be issues and sold pursuant to the Purchase
Contracts, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby,
shall be reasonably satisfactory in all material respects to counsel for the
Underwriter, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(g) At the time of execution of this Agreement, the Underwriter shall have
received letters from the Company's independent accountants, in form and
substance satisfactory to the Underwriter, addressed to the Underwriter and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(h) With respect to the letter of the Company's independent accountants
referred to in the preceding paragraph and delivered to the Underwriter
concurrently with the execution of this Agreement (the "initial letters"), the
Company shall have furnished to the Underwriter letters (the "bring-down
letters") of such accountants, addressed to the Underwriter and dated as of such
Delivery Date confirming in all material respects the conclusions and findings
set forth in the initial letter.
(i) The Company shall have furnished to the Underwriter a certificate, dated
such Delivery Date, of its Chairman of the Board or its President or any
Executive Vice President or Senior Vice President of the Company stating that
the representations, warranties and agreements of the Company in Section 1 are
true and correct as of such Delivery Date and that the Company has complied with
all its agreements contained herein and satisfied all the conditions required of
it hereunder.
(j) On each Delivery Date, counsel for the Underwriter shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the SPUS as herein
contemplated, or other legal matters incident to the authorization, form and
validity of this Agreement, the Purchase Contract Agreement, the Pledge
Agreement, the Remarketing Agreement, the Purchase Contracts, the Common Stock
to be issued and sold pursuant to the Purchase Contracts, the Registration
Statement and the Prospectus or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained, and all proceedings taken by the Company in connection with
the issuance and sale of the SPUS as herein contemplated shall be satisfactory
in form and substance to the Underwriter and counsel for the Underwriter.
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(k) There shall not have been, since the date hereof, except as reflected in
or contemplated by the Registration Statement and the Prospectus, any material
adverse change in the general affairs, financial condition, or earnings of the
Company or any material transaction entered into by the Company other than a
transaction in the ordinary course of business, the effect of which, in each
such case, in the judgment of the Underwriter, is so material and so adverse
that it makes it inadvisable to proceed with the public offering or delivery of
the SPUS on the terms and in the manner contemplated in the Prospectus and this
Agreement.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's or any
significant subsidiary's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations.
(m) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or in the over-the-
counter market, or trading in any securities of the Company on any exchange or
in the over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Underwriter, impracticable or inadvisable to proceed with the public
offering or delivery of the SPUS on the terms and in the manner contemplated in
the Prospectus.
(n) There shall be an order of the Commission pursuant to the Holding Company
Act permitting the issuance and sale of the SPUS (and any related security) and
such order shall be in full force and effect and all provisions of such order or
orders heretofore entered are deemed acceptable to the Underwriter and the
Company, and all provisions of such order or orders hereafter entered shall be
deemed acceptable to the Underwriter 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.
7. Termination by the Underwriter. In case any of the conditions specified
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in Section 6 shall not have been fulfilled, this Agreement may be terminated by
the Underwriter upon mailing or delivering written notice thereof to the
Company. Any such termination shall be without liability of any party to any
other party except as otherwise provided in Section 9 and Sections 5(b) and 5(h)
and this Section 7. If this Agreement shall be terminated by the Underwriter
under this Section or because of any failure or refusal 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
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case, the Company will reimburse the Underwriter for all out of pocket expenses
(in addition to the fees and disbursements of their outside counsel as provided
in Section 5(b)) reasonably incurred by the Underwriter in connection with this
Agreement or the offering contemplated hereunder and, upon such reimbursement,
the Company shall be absolved of any further liability hereunder, except as
provided in Section 5(b) and 10.
8. Conditions of the Obligation of the Company. The obligation of the Company
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to deliver the SPUS shall be subject to the conditions set forth in Sections
6(a) and 6(n). 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 Underwriter. Any such termination shall be without
liability of either party to the other except as otherwise provided in Sections
5(b) and 9.
9. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person who controls the Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each such Underwriter
and controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating any such losses, claims, damages, or liabilities,
or in connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any preliminary prospectus (if and when used prior to the
effective date of the Registration Statement), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that the
foregoing agreement, insofar as it relates to any preliminary prospectus, shall
not inure to the benefit of any Underwriter (or to the benefit of any person who
controls such Underwriter) on account of any losses, claims, damages or
liabilities arising out of the sale of any of the SPUS by such Underwriter to
any person if it shall be established that a copy of the Prospectus, excluding
any documents incorporated by reference (as supplemented or amended, if the
Company shall have made any supplements or amendments which have been furnished
to the Underwriter), shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
to such person in any case where such delivery is required by the Securities
Act, if the misstatement or omission leading to such loss, claim, damage or
liability was corrected in the Prospectus (excluding any documents incorporated
by reference) as amended or supplemented, and such correction would have cured
the defect giving rise to such loss, claim, damage, or liability; and provided
further, however, that the indemnity agreement contained in this Section 9(a)
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of or based upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon information furnished herein or otherwise in
writing to the Company by or on behalf of any Underwriter for use in the
Registration Statement or any
11
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 1 hereof shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the SPUS.
(b) The Underwriter agrees to indemnify and hold harmless the Company, its
officers and directors, and each person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Securities
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or in either such document as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), or any preliminary prospectus (if and when used prior to the
effective date of the Registration Statement), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished herein or in writing to
the Company by or on behalf of such Underwriter for use in the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
any preliminary prospectus. The indemnity agreement of the Underwriter 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 SPUS.
(c) The Company and the Underwriter 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 in
any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified
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party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party (or parties), the indemnified party
shall have the right to select separate counsel to assert such legal defenses
and to participate otherwise in the defense of such action on behalf of such
indemnified party. The indemnifying party shall bear the reasonable fees and
expenses of outside counsel retained by the indemnified party if (i) the
indemnified party shall have retained such counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, representing the
indemnified parties under Section 9(a) or 9(b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall have elected not to
assume the defense of such action, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
the action, or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
Notwithstanding the foregoing sentence, an indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
(such consent not to be unreasonably withheld), but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such a proceeding), unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under Section 9(a) or 9(b)
above 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 Underwriter, on the other, in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations, including relative benefit. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by you on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriter 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.
13
10. Notices, Etc. All communications hereunder shall be in writing
------------
and if to the Underwriter shall be mailed, telexed, telecopied or delivered to
the Underwriter at the address set forth on Schedule I hereto, or if to the
Company shall be mailed, telexed, telecopied or delivered to it, attention of
Treasurer, Dominion Resources, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000.
11. Persons Entitled To Benefit Of Agreement. This Agreement shall inure to
----------------------------------------
the benefit of and be binding upon the Underwriter, the Company, and their
respective successors and assigns. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (i) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Underwriter within the meaning of Section 15 of
the Securities Act and (ii) the indemnity agreement of the Underwriter contained
in Section 9(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company and officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 11, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
12. Governing Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of New York.
13. Counterparts. This Agreement may be executed in one or more counterparts
------------
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
14. Headings. The headings herein are inserted for convenience of reference
--------
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
14
If the foregoing correctly sets forth the agreement between the Company and
the Underwriter, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
DOMINION RESOURCES, INC.
By: _______________________
Title:
Accepted:
[UNDERWRITER]
By: _________________________
AUTHORIZED REPRESENTATIVE
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