Exhibit 1(iv)
_____________ Trust Preferred Securities
DOMINION RESOURCES CAPITAL TRUST [ ]
guaranteed by
DOMINION RESOURCES, INC.
FORM OF UNDERWRITING AGREEMENT
[Date]
[Name of Representative],
for itself
and the other several Underwriters
named in Schedule I, attached hereto
[Address of Representative]
Ladies and Gentlemen:
Dominion Resources Capital Trust [ ] (the Trust), a statutory business
trust created under the Business Trust Act (the Delaware Act) of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801
et seq.) and Dominion Resources, Inc., a Virginia corporation (the Company and,
together with the Trust, the Offerors), confirm their agreement (the Agreement)
with [Name of Representative] (the Representative), and each of the other
Underwriters named in Schedule I (collectively, including the Representative,
the Underwriters), with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number set forth opposite their names in Schedule I of the __________
____% Trust Preferred Securities (liquidation amount of $______ per security) of
the Trust (the Trust Preferred Securities). The Trust Preferred Securities will
be guaranteed by the Company, to the extent described in the Prospectus (as
defined below), with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the Trust Preferred Securities Guarantee
Agreement (the Trust Preferred Securities Guarantee), to be dated as of
__________ ___, 200__, between the Company and The Chase Manhattan Bank, as
Trustee (the Guarantee Trustee). The Trust Preferred Securities issued in book-
entry form will be issued to Cede & Co., as nominee of The Depository Trust
Company (DTC), pursuant to a letter of representations, to be dated on or prior
to the Closing Time (as defined in Section 3(b)) (the DTC Agreement), among the
Trust, the Guarantee Trustee and DTC.
The entire proceeds from the sale of the Trust Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the Common Securities), and will be used by the Trust to
purchase $_____________ of ____% Junior Subordinated Deferrable Interest
Debentures due ____________ ___, 20___ (the Subordinated Debentures) issued by
the Company. The Trust Preferred Securities and the Common Securities will be
issued pursuant to the Amended and Restated Trust Agreement, to be dated as of
____________ ___, 200__
(the Trust Agreement), among the Company, as sponsor, ______________________ and
___________________, as administrative trustees (the Administrative Trustees),
The Chase Manhattan Bank, as property trustee (the Property Trustee), and Chase
Manhattan Bank Delaware, as Delaware trustee (the Delaware Trustee and, together
with the Property Trustee and the Administrative Trustees, the Trustees). The
Subordinated Debentures will be issued pursuant to an indenture, as of December
1, 1997, as supplemented by a supplemental indenture dated as of December 1,
1997 and as to be further supplemented by a supplemental indenture to be dated
as of _____________ ___, 200__ (collectively, the Indenture), between the
Company and The Chase Manhattan Bank, as trustee (the Debenture Trustee). The
Trust and the Company shall enter into an Agreement as to Expenses and
Liabilities (the Expenses Agreement) to be dated as of _____________ ___, 200__,
pursuant to which the Company shall pay, under certain circumstances, the
Obligations (as defined in the Expenses Agreement) of the Trust.
The Trust Preferred Securities, the Trust Preferred Securities Guarantee
and the Subordinated Debentures may be collectively referred to herein as the
"Securities." The Indenture, the Trust Agreement and the Trust Preferred
Securities Guarantee, the Expenses Agreement, the DTC Agreement and this
Agreement may be referred to herein collectively as the "Operative Documents."
The Offerors understand that the Underwriters propose to make a public
offering of the Trust Preferred Securities (as guaranteed by the Trust Preferred
Securities Guarantee) on the terms and in the manner set forth herein and agree
that the Underwriters may resell, subject to the conditions set forth herein,
all or a portion of the Trust Preferred Securities.
SECTION 1. Representations and Warranties. The Offerors jointly and
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severally represent and warrant to each Underwriter as of the date hereof and as
of the Closing Time, and agree with each Underwriter as follows:
(a) A registration statement, No. 333-______ on Form S-3 for the registration
of the Securities 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 the Underwriters, 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 Securities and other securities included in the
Registration Statement, which prospectus is now proposed to be supplemented by a
supplement relating to the Securities 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).
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(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,
at the Closing Time, 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.
(c) Except as reflected in, or contemplated by, the Registration Statement and
Prospectus, since the respective most recent dates as of which information is
given in the Registration Statement and Prospectus, there has not been any
material adverse change in the condition of the Company, financial or otherwise.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and operate
its property and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under each of the Operative Documents, to
hold the Common Securities issued by the Trust, to issue, deliver and perform
its obligations under the Subordinated Debentures, the Trust Preferred
Securities Guarantee and the Expenses Agreement; and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Significant Subsidiaries (as defined in Rule 1-01(w) of Regulation S-X), taken
as a whole.
(e) 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
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common capital stock is owned by the Company, directly or through Significant
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(f) The Trust has been duly created and is validly existing in good standing as
a statutory business trust under the Delaware Act with the power and authority
to own its property and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under the Operative Documents, as
applicable, and to issue, deliver and perform its obligations under the Trust
Preferred Securities. The Trust is not a party to or otherwise bound by any
material agreement other than those described in the Prospectus. The Trust is
and will, under current law, be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation.
The Trust does not have any consolidated or unconsolidated Significant
Subsidiaries. The Trust is and will be treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles. The Trust is
not required to be authorized to do business in any jurisdiction other than the
State of Delaware.
(g) The Common Securities have been duly authorized by the Trust Agreement and,
when issued and delivered by the Trust to the Company against payment therefor
as described in the Prospectus, will be validly issued and, subject to the terms
of the Trust Agreement, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform in all material respects
to the description thereof contained in the Prospectus. The issuance of the
Common Securities is not subject to preemptive or other similar rights. At the
Closing Time all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, claim, encumbrance or equitable right.
(h) The Trust Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered against payment therefor as provided
herein, will be validly issued and, subject to the terms of the Trust Agreement,
fully paid and non-assessable undivided beneficial interests in the assets of
the Trust and will conform in all material respects to the description thereof
contained in the Prospectus. The issuance of the Trust Preferred Securities will
not be subject to preemptive or other similar rights.
(i) The execution and delivery by the Trust and the Company of this Agreement
and the performance by the Trust and the Company of their respective obligations
hereunder, have been duly authorized by all necessary action on the part of the
Trust and corporate action on the part of the Company; and this Agreement has
been duly executed and delivered by the Trust and the Company.
(j) The Trust Agreement has been duly authorized by the Company and, at the
Closing Time, will have been duly executed and delivered by the Company and the
Trustees, and assuming due authorization, execution and delivery of the Trust
Agreement by the Property Trustee and the Delaware Trustee, the Trust Agreement
will, at the Closing Time, be a valid and binding obligation of the Company and
the Trustees, enforceable against the Company and the Trustees in accordance
with its terms, subject to
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bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditor's rights generally or by general principles of equity
(whether in a proceeding at law or in equity) and the availability of equitable
remedies (collectively, the Bankruptcy Exceptions); will conform in all material
respects to the description thereof contained in the Prospectus; and will have
been duly qualified under the Trust Indenture Act of 1939, as amended (the 1939
Act).
(k) The Trust Preferred Securities Guarantee, the Indenture and the Expenses
Agreement have been duly authorized by the Company and, at the Closing Time,
will have been duly executed and delivered by the Company, and will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the Bankruptcy Exceptions; will conform
in all material respects to the descriptions thereof contained in the
Prospectus; will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to the
Bankruptcy Exceptions; will conform in all material respects to the description
thereof contained in the Prospectus; and at the time the Closing Time, the Trust
Preferred Securities Guarantee and the Indenture will have been duly qualified
under the 1939 Act.
(l) The Subordinated Debentures have been duly authorized by the Company and,
at the Closing Time, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the Bankruptcy Exceptions; and the
Subordinated Debentures will be in the forms contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material respects to the
descriptions thereof in the Prospectus.
(m) The issuance and sale by the Trust of the Trust Preferred Securities and
the Common Securities and the execution and delivery by the Trust of, and the
performance by the Trust of its obligations under, the Operative Documents do
not and will not contravene any provision of applicable law, the Trust Agreement
or the certificate of trust of the Trust, or any agreement or other instrument
binding upon the Trust, the effect of which is materially adverse to the
condition, financial or otherwise, of the Trust, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Trust. No approval, authorization or consent of any court or governmental
authority or agency is required on the part of the Trust in connection with the
consummation of the transactions contemplated by the Operative Documents, except
such as have been obtained or will have been obtained prior to the Closing Time
or as may be required under state securities laws.
(n) The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Operative Documents and the Subordinated
Debentures, as applicable, do not and will not contravene any provision of
applicable law, the Articles of Incorporation or the Bylaws of the Company, or
any agreement or other instrument binding upon the Company, the effect of which
is materially adverse to
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the condition, financial or otherwise, or in the earnings, business affairs or
operations of the Company, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company. No approval,
authorization or consent of any court or governmental authority or agency is
required on the part of the Company in connection with the consummation of the
transactions contemplated by the Operative Documents, except such as have been
obtained or will have been obtained prior to the Closing Time or as may be
required under state securities laws.
(o) Neither the Trust nor the Company is in violation of its respective
organizational documents or in default in the performance or observation of any
obligation, agreement, covenant or condition contained in any contract or
agreement to which it is a party or by which it or any of its properties may be
bound, which violation or default, the effect of which is materially adverse to
the condition, financial or otherwise, or in the earnings, business affairs or
operations of the Trust or the Company.
(p) There are no legal or governmental proceedings pending or, to the knowledge
of the Trust or the Company, threatened to which the Trust or the Company is a
party or to which any of the properties of the Trust or the Company is subject,
other than proceedings accurately described in all material respects in the
Prospectus, the effect of which is materially adverse to the condition,
financial or otherwise, or in the earnings, business affairs or operations of
the Company or on the power or ability of the Trust or the Company to perform
its obligations under the Operative Documents or the Securities, as applicable.
(q) Neither the Trust nor the Company is, and following consummation of the
transactions contemplated by the Operative Documents neither will be, an
"investment company" or a company "controlled" by an "investment company" which
is required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(r) The Company is a "holding company" within the meaning of that term as
defined in the Public Utility Holding Company Act of 1935, as amended (the "1935
Act"), and at the Closing Time, an order or orders of the Commission pursuant to
the 1935 Act permitting the offering contemplated hereby will be in full force
and effect.
SECTION 2. Offering. The Underwriters have advised the Company that the
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Underwriters propose to make an offering of the Trust Preferred Securities
purchased by the Underwriters for sale on the terms set forth in the Prospectus.
SECTION 3. Purchase and Delivery. On the basis of the representations and
---------------------
warranties contained herein and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at a price of $_______ per Trust Preferred Security, the number of Trust
Preferred Securities set forth in Schedule I opposite the name of such
Underwriter, plus any additional Trust Preferred Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 8 hereof.
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(b) Deliveries of certificates for the Trust Preferred Securities
shall be made at the offices of the Underwriters in New York (or at the offices
of [Underwriters' Counsel] specified below in the case of Trust Preferred
Securities registered in the name of Cede & Co.), and payment of the purchase
price for the Trust Preferred Securities shall be made by the Representative, on
behalf of the several Underwriters, to the Trust by wire transfer of immediately
available funds contemporaneous with closing at the offices of [Underwriters'
Counsel], [Office Address of Underwriters' Counsel], at 10:00 A.M. on
______________ ___, 200__ (unless postponed in accordance with the provisions of
Section 8), or such other time not later than ten business days after such date
as shall be agreed upon in a writing signed by the Representative and the
Offerors (such time and date of payment and delivery being herein called the
"Closing Time").
Payment for the Trust Preferred Securities purchased by the Underwriters
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the respective accounts of the Underwriters of certificates
for the Trust Preferred Securities. Certificates for the Trust Preferred
Securities shall be in definitive or global form and in such denominations as
the Underwriters may request in writing at least one business day before the
Closing Time. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Trust Preferred Securities which it has
agreed to purchase. The certificates representing the Trust Preferred Securities
shall be registered in the name of Cede & Co. pursuant to the DTC Agreement and
shall be made available for examination by the Underwriters in the City of New
York not later than 10:00 A.M. on the last business day prior to the Closing
Time.
(c) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Trust
Preferred Securities will be used to purchase Subordinated Debentures of the
Company (which purchase was arranged by the Underwriters), the Company hereby
agrees to pay at the Closing Time to the Representative by wire transfer in
immediately available funds, for the accounts of the several Underwriters,
$_______ per Capital Security to be delivered by the Company hereunder at the
Closing Time.
SECTION 4. Conditions to Closing. The several obligations of the
---------------------
Underwriters under this Agreement to purchase the Trust Preferred Securities
will be subject to the following conditions:
(a) Subsequent to the date of this Agreement and prior to the
Closing Date,
(i) there shall not have occurred any downgrading of
the Company's or the Trust's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, the
effect of which is materially adverse to the condition, financial or
otherwise, or
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in the earnings, business affairs or operations of the Company or the
Trust from that set forth in the Prospectus and that makes it
impracticable, in the Underwriters' judgment, to market the Trust
Preferred Securities on the terms and in the manner contemplated in
the Prospectus.
(b) At the Closing Time, the Underwriters shall have received
certificates, dated as of the Closing Time and signed by the Chairman of the
Board, Chief Executive Officer, President or any Executive or Senior Vice
President of the Company and an Administrative Trustee of the Trust, to the
effect set forth in clause (a) above and to the effect that the representations
and warranties of the Company and the Trust, as the case may be, contained in
this Agreement are true and correct as of the Closing Time and that each of the
Company and the Trust has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before the
Closing Time.
The officer and Administrative Trustee signing and delivering such
certificates may rely upon the best of his or her knowledge as to proceedings
threatened.
(c) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of XxXxxxx, Woods, Battle &
Xxxxxx LLP, counsel for the Offerors, in form and substance satisfactory to
counsel for the Underwriters.
(d) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxxx, Xxxxxx and Xxxxxx,
special Delaware counsel to the Offerors, in form and substance satisfactory to
counsel for the Underwriters.
(e) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger,
counsel to Chase Manhattan Bank Delaware, as Delaware Trustee under the Trust
Agreement, in form and substance satisfactory to counsel for the Underwriters.
(f) At the Closing Time, the Underwriters shall have received an
opinion, dated as of the Closing Time, of XxXxxxx, Woods, Battle & Xxxxxx LLP,
special tax counsel to the Offerors, that (i) the Subordinated Debentures will
be classified for United States federal income tax purposes as indebtedness of
the Company, (ii) the Trust will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation and (iii) subject to the qualifications set forth therein, the
discussion set forth in the Prospectus under the heading "Certain Federal Income
Tax Consequences" represents, in all material respects, a fair and accurate
summary of the United States federal income tax consequences of the purchase,
ownership and disposition of the Trust Preferred Securities under current law
and the opinion contained therein is confirmed as of the date of such opinion.
Such opinion may be conditioned on, among other things, the initial and
continuing accuracy of the facts, financial and other information, covenants and
representations set forth in certificates of officers of the Company and other
documents deemed necessary for such opinion.
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(g) At the Closing Time, the Underwriters shall have received
the favorable opinion, dated as of the Closing Time, of [Underwriters' Counsel],
counsel for the Underwriters with respect to such matters relating to the
offering contemplated hereby as the Underwriters may reasonably request.
(h) At the time of execution of this Agreement and at the
Closing Time, the Underwriters shall have received a letter or letters, as the
case may be, dated as of the date hereof and/or as of the Closing Time, in form
and substance satisfactory to the Underwriters, from the Company's independent
public accountants, containing statements and information of the type ordinarily
included in accountants' SAS 72 "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(i) At the Closing Time, the Underwriters shall have received
the favorable opinion, dated as of the Closing Time, of Xxxxxxx, Swaine & Xxxxx,
counsel for the Debenture Trustee, the Guarantee Trustee and the Property
Trustee, in form and substance reasonably satisfactory to counsel for the
Underwriters.
SECTION 5. Covenants of the Offerors. In further consideration of the
-------------------------
agreements of the Underwriters contained in this Agreement, the Offerors jointly
and severally covenant as follows:
(a) The Company, at or prior to the Closing Time, will deliver
to the Underwriters 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 Underwriters.
(b) Before amending or supplementing the Registration Statement
of the Prospectus, to furnish to the Underwriters a copy of each such proposed
amendment or supplement and not to use any such proposed amendment or supplement
to which the Underwriters reasonably object.
(c) If, during the time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event shall
occur 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 to suspend solicitation of purchases of the
Securities 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 Securities 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
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Section 10(a) of the Securities Act. During the period specified in the second
sentence of this Section (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) To furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Trust Preferred Securities
for offer and sale under the securities laws of such jurisdictions as the
Underwriters 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.
(e) Whether or not any sale of such Trust Preferred Securities
is consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Securities, (iii)
the reasonable out of pocket fees and disbursements of the Offerors' outside
counsel and accountants, the Debenture Trustee and Guarantee Trustee and any
counsel, and the Trustees and any counsel, (iv) the qualification of such
Securities under state securities laws in accordance with the provisions of
Section 5(d), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda, (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of copies of
the Prospectus and any amendments or supplements thereto, (vi) any fees charged
by rating agencies for the rating of such Securities, and (vii) the fees and
expenses, if any, incurred in connection with the admission of such Securities
for trading in any appropriate market system or clearing with any appropriate
clearing system.
(f) During the period beginning on the date of the Purchase
Agreement and continuing to the Closing Time, the Company and Trust will not
offer, sell, contract to sell or otherwise dispose of any Trust Preferred
Securities, any other beneficial interest in the assets of the Trust, or any
other securities of the Trust or any other similar trust affiliated with the
Guarantor which are substantially similar to the Trust Preferred Securities,
without the prior written consent of the Representative.
(g) The Trust will use the net proceeds received by it from the
sale of the Trust Preferred Securities, and the Company will use the proceeds
received by it from the sale of the Subordinated Debentures, in the manners
specified in the Prospectus under "Use of Proceeds."
(h) 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
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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.
(i) [The Company will use its best efforts to cause the Trust
Preferred to be listed on the New York Stock Exchange, subject to official
notice of issuance.]
SECTION 6. Indemnification and Contribution.
--------------------------------
(a) The Offerors jointly and severally, agree to indemnify and
hold harmless each Underwriter, their respective directors, officers and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act,
from and against any and all losses, claims, damages and liabilities, and to
reimburse each such Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
(including, to the extent hereinafter provided, reasonable out of pocket outside
counsel fees) incurred by it or them in connection with investigating or
defending or preparing to defend against any such losses, claims, damages or
liabilities arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such losses, claims,
damages or liabilities arise out of or are based upon any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Underwriters expressly for use therein; provided,
however, that the foregoing indemnity, insofar as it relates to the preliminary
prospectus, shall not inure to the benefit of any indemnified person if the
person asserting any such loss, claim or damage purchased Trust Preferred
Securities from an Underwriter and if a copy of the Prospectus (correcting the
preliminary prospectus) was not delivered by the Underwriter or on its behalf to
such person at, prior to or promptly following the written confirmation of the
sale of the Trust Preferred Securities to such person, unless such failure to
deliver the Prospectus was a result of non- compliance by the Company with
Section [5(a), (b) or (c)] hereof.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
Section 6(a).
(c) Each Underwriter agrees, severally and not jointly, to
indemnify, hold harmless and reimburse the Offerors, their respective directors,
officers and each person, if any, who controls either of the Offerors within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act to the same extent as the foregoing indemnity from the
Offerors to such Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company in writing by such Underwriter through
the Underwriters expressly for use in the Prospectus or any amendments or
supplements thereto. The indemnity agreement of the respective
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Underwriters contained in this Section shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Company,
or any such other Underwriter or any such controlling person, and shall survive
the delivery of the Trust Preferred Securities.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 6(a) or 6(c) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, 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 retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
out of pocket fees and disbursements of such outside counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel if necessary,
reasonably satisfactory to all parties) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by the Representative in the case of parties
indemnified pursuant to Section 6(a) above and by the Company in the case of
parties indemnified pursuant to Section 6(c) above. The indemnifying party shall
not be liable for any settlement of any litigation, investigation or proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss, claim damage,
expense or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes
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an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and does not include a statement
as to, or an admission of, fault, culpability or a failure to act by or on
behalf of any indemnified party.
(e) To the extent the indemnification provided for in Section
6(a) or 6(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
fault of the Offerors, 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 Offerors on the one hand or by the Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 6(e) 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 6(e). 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 6(e) 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.
SECTION 7. Termination. This Agreement shall be subject to termination by
-----------
notice given by the Underwriters to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Time, (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq
Stock Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the Underwriters'
judgment, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event singly or together with any
other such event makes it, in the Underwriters' judgment, impracticable to
market the Trust Preferred Securities on the terms and in the manner
contemplated in the Prospectus.
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SECTION 8. Miscellaneous. If, as of the Closing Time, any one or more of
-------------
the Underwriters shall fail or refuse to purchase Trust Preferred Securities
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Trust Preferred Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of Trust Preferred Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the number of Trust Preferred Securities set forth opposite
their respective names in Schedule I bears to the aggregate number of Trust
Preferred Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the non-defaulting Underwriters
may specify, to purchase the Trust Preferred Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided, however, that in no event shall the number of Trust Preferred
Securities that any Underwriter has agreed to purchase pursuant to Section 3 be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
number of Trust Preferred Securities without the written consent of such
Underwriter. If on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Trust Preferred Securities which it or they have agreed to
purchase hereunder on such date and the aggregate number of Trust Preferred
Securities with respect to which such default occurs is more than one-tenth of
the number of Trust Preferred Securities to be purchased on such date and
arrangements satisfactory to the non-defaulting Underwriters and the Company for
the purchase of such Trust Preferred Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or of the Company. In any such case either the
Underwriters or the Company shall have the right to postpone the Closing Time,
but in no event for longer than seven days, in order that the required changes,
if any, in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; and such termination shall be without
liability of any party to any other party except as provided in Section 5(e).
Section 7, this Section 8 and all representations, warranties and
agreements contained in this Agreement, or in certificates of officers of the
Company or trustees of the Trust submitted hereunder, shall remain operative and
in full force and effect
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regardless of (i) any termination of this Agreement; (ii) any investigation made
by or on behalf of the Underwriters or any person controlling any Underwriter or
by or on behalf of the Trust, the Trustees, the Company, its officers or
directors or any other person controlling the Company; and (iii) acceptance of
payment for any of the Trust Preferred Securities.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
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Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement between us.
Very truly yours,
DOMINION RESOURCES CAPITAL TRUST [ ]
By: DOMINION RESOURCES, INC., as
Depositor
By:_________________________________
Name:
Title:
DOMINION RESOURCES, INC.
By:_________________________________
Name:
Title:
Agreed, this ___ day of December, 1997
[Representative]
Acting severally on behalf of itself and the
several Underwriters named herein.
[Representative]
By:_________________________________
Name:
Title:
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