EXHIBIT 1.1
DOMINION RESOURCES, INC.
200__ Series __ _____% Senior Notes Due __________
UNDERWRITING AGREEMENT
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As Representatives for the Underwriters
listed in Schedule I hereto
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Ladies and Gentlemen:
The undersigned, Dominion Resources Inc. (the "Company"), hereby
confirms its agreement with the several Underwriters named in Schedule I hereto
(the "Agreement") with respect to the issuance and sale to the several
Underwriters specified in Schedule I hereto of certain of the Company's Senior
Notes (the "Senior Notes") 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
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. Unless otherwise stated, 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
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 Sections 4 and 5 herein, 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 Company's Senior Indenture
dated as of June 1, 2000 between the Company and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), 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
and warrants to, and agrees with, the Underwriters that:
(a) A registration statement, No. __________ on Form S-3 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 Debt Securities and
other securities 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 completed and 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 (the "Rules and Regulations") and, 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
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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 have 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 are independent public
accountants as required by the Securities Act and the rules and
regulations relating to the Securities Act.
(e) Consolidated Natural Gas Company, Dominion Exploration &
Production, Inc., Dominion Energy, Inc., Dominion Nuclear Connecticut,
Inc., Dominion Nuclear, Inc., Dominion Nuclear Marketing II, Inc.,
Dominion Transmission, Inc., The East Ohio Gas Company and Virginia
Electric and Power Company 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, with the exception of the outstanding preferred stock
of Virginia Electric and Power Company which is owned by third parties,
the capital stock of each Significant Subsidiary is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, claim, encumbrance or equitable right.
(f) The execution, delivery and performance of this Agreement, the
Indenture 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
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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 the application of the proceeds thereof
as described in the Prospectus, will not be, an "investment company" or a
company "controlled" by an "investment company" which is required to be
registered under the Investment Company Act of 1940, as amended.
4. Public Offering. On the basis of the representations and warranties
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 several Underwriters reserve the right to vary the offering price
and further reserve the right to withdraw, cancel or modify any subsequent
offering without notice.
5. Time and Place of Closing. Delivery of the certificate(s) for the
Senior Notes and 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 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 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
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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 the
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). 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 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. Any such documents or amendments which are electronically available
through the Commission's XXXXX filing system shall be deemed to have been
furnished by the Company to the Representatives and Xxxxxxxx Xxxxxxx LLP.
(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 prior to filing;
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
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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 Senior Notes for offer and
sale under the securities or blue sky laws of such jurisdictions 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 is 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 dispose of any Senior Notes or any security
convertible into or exchangeable for Senior Notes or any debt securities
substantially similar to Senior Notes (except for the Senior Notes issued
pursuant to this Agreement).
7. Conditions of Underwriters' Obligations; Termination by the Underwriters.
(a) The obligations of the Underwriters to purchase and pay for the Senior
Notes on the Closing Date 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) The relevant order or orders of the Commission pursuant to the
Public Utility Holding Company Act of 1935, as amended (the "1935 Act")
permitting the issuance and sale of the Senior Notes, a copy of which has
been provided to the Representatives, shall be in full force and effect and
all provisions of such order or orders heretofore entered are deemed
acceptable to the Representatives and the Company and all provisions of
such order or orders hereafter entered shall be deemed acceptable to the
Representatives and the Company unless within 24
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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, and all in form and substance satisfactory to
the Representatives.
(iv) The Representatives shall have received from Deloitte
& Touche LLP on the date of this Agreement and on the Closing Date
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.
(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 senior debt securities of the
Company of the same class as 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 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, and (B) there
shall not have occurred (1) a downgrading in the rating accorded
the Company's senior unsecured notes, or securities that are pari
passu to the Company's senior unsecured notes, by any "nationally
recognized statistical rating organization" (as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act) 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 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
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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.
(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.
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(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the
Securities Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Securities Exchange Act, or any
other statute or common law and to reimburse each such Underwriter and
controlling person for any legal or other expenses (including, to the
extent hereinafter provided, reasonable outside counsel fees) incurred
by them in connection with investigating 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; 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
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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 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 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 (in addition to one
local counsel), representing the indemnified parties under Section 9(a)
or 9(b), as the case
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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
(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.
-11-
10. Termination. 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 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, Dominion Resources,
Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (facsimile number: (804)
819-2211).
-12-
[The remainder of this page is left intentionally blank.]
-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.
DOMINION RESOURCES, INC.
By:__________________________________
Name:
Title:
-14-
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
___________________________________
acting individually and as Representative
of the Underwriters named in Schedule I hereto
By:________________________________
Authorized Signatory
Name:
Title:
___________________________________
acting individually and as Representative
of the Underwriters named in Schedule I hereto
By:________________________________
Authorized Signatory
Name:
Title:
-15-
SCHEDULE I
Principal Amount
of Senior Notes
Underwriter to be Purchased
----------- ---------------
____________________ $__________
____________________ $__________
____________________ $__________
____________________ $__________
____________________ $__________
____________________ $__________
____________________ $__________
Total: $__________
I-1
SCHEDULE II
Title of Senior Notes: 200__ Series _______% Senior Notes Due __________
Aggregate Principal Amount of the Senior Notes: $_00,000,000
Initial Price to Public:
__% of the principal amount of the Senior Notes plus
accrued interest, if any, from the date of issuance
Initial Purchase Price to be paid by Underwriters:
__% of the principal amount of the Senior Notes
Time of Delivery: __________, __________
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 number: (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
DOMINION RESOURCES, INC.
200__ Series _______% Senior Notes, Due __________
__________
____________________
____________________
As Representatives for the Underwriters
____________________
____________________
____________________
____________________
____________________
____________________
Ladies and Gentlemen:
We have acted as your counsel in connection with the arrangements for
issuance by Dominion Resources, Inc. ("the Company") of up to U.S. $_00,000,000
aggregate principal amount of its 200__ Series ________% Senior Notes Due
__________ (the "Senior Notes") and the offering of the Senior Notes by you
pursuant to an Underwriting Agreement dated __________ by and between you and
the Company (the "Underwriting Agreement"). This letter is being delivered to
you pursuant to 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
III-1
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 Virginia, and has the corporate
power to transact its business as described in the Prospectus.
2. 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. 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
III-2
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).
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 contained in the
prospectus initially filed as part of the Registration Statement under
DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF THE SENIOR DEBT
SECURITIES, as supplemented by the statements under DESCRIPTION OF THE SENIOR
NOTES in the Prospectus Supplement dated __________, 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
III-3
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.
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered to,
any person without our prior written consent.
Very truly yours,
XXXXXXXX XXXXXXX LLP
III-4
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
DOMINION RESOURCES, INC.
200__ Series _______% Senior Notes, Due __________
__________
____________________
____________________
As Representatives for the Underwriters
____________________
____________________
____________________
____________________
____________________
____________________
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $_00,000,000 aggregate
principal amount of 200__ Series ________ % Senior Notes due __________(the
"Senior Notes"), of Dominion Resources, Inc. (the "Company") pursuant to an
Underwriting Agreement dated__________, by and between the Company and to the
Underwriters listed on Schedule I as attached thereto (the "Underwriting
Agreement"), have been taken under our supervision as counsel for the Company.
This letter is being delivered to you pursuant to the Underwriting Agreement.
All terms not otherwise defined herein shall have the meanings set forth in the
Underwriting Agreement.
IV-1
We have examined originals, or copies certified to our satisfaction,
of such corporate records of the Company, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee, and other documents, as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trustee and other appropriate
persons and statements contained in the Registration Statement hereinafter
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Underwriting Agreement have been
satisfactory to us.
On this basis we are of the opinion that:
1. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than those required under the
Public Utility Holding Company Act of 1935, the Securities Act and the Rules and
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states) is necessary or required in
connection with the due authorization, execution and delivery of the
Underwriting Agreement or the due execution, delivery or performance of the
Indenture by the Company or for the offering, issuance, sale or delivery of the
Senior Notes. An appropriate order of 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 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).
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 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).
4. The Registration Statement (Reg. No. __________) 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
IV-2
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 (except the financial
statements, any pro forma information and schedules contained or incorporated by
reference therein, as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act, and to the applicable rules and regulations of the Commission
thereunder.
6. We are of the opinion that the statements relating to the Senior
Notes contained in the prospectus initially filed as part of the Registration
Statement under DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF THE
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 your representatives 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 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 Statement or
Prospectus) 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 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 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
IV-3
written consent.
Yours very truly,
MCGUIREWOODS LLP
IV-4
SCHEDULE V
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
DOMINION RESOURCES, INC.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
DOMINION RESOURCES, INC.
200__ Series _______% Senior Notes, Due __________
________
____________________
____________________
As Representatives for the Underwriters
____________________
____________________
____________________
____________________
____________________
____________________
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $_00,000,000 aggregate
principal amount of 200__ Series _______ % Senior Notes due __________ (the
"Senior Notes"), of Dominion Resources, Inc. (the "Company") pursuant to an
Underwriting Agreement dated __________, by and between the Company and to the
Underwriters listed on Schedule I as 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.
V-1
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 Virginia, and has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement; and 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.
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 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
V-2
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
