EXHIBIT 1
DOMINION RESOURCES, INC.
$510,000,000 2003 Series F 5.250% Senior Notes Due 2033
UNDERWRITING AGREEMENT
July 21, 2003
UBS Securities LLC
Wachovia Capital Markets, LLC
as Representatives for the Underwriters
listed in Schedule I hereto
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
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 named in Schedule I of certain of the Company's 2003 Series F
Senior Notes (the Senior Notes) specified in Schedule II hereto, and the public
offering thereof by the several Underwriters, upon the terms specified in
Schedule II.
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, and the purchase price to be paid by the Underwriters
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, or in the Registration Statement and Prospectus
referred to below) the terms and provisions for the purchase of such Senior
Notes. The Senior Notes will be issued under the 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 Twenty-second Supplemental
Indenture dated as of July 1, 2003 (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. 333-106790 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); 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 Securities
Exchange 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
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make the statements therein not misleading; provided, that the
foregoing representations and warranties in this Section 3(b) shall not
apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon information furnished herein or in
writing to the Company by the Underwriters or on the Underwriters'
behalf through the Representatives for use in the Registration
Statement or Prospectus or the part of the Registration Statement which
constitutes the Trustee's Statement of Eligibility under the Trust
Indenture Act; and provided, further, that the foregoing
representations and warranties are given on the basis that any
statement contained in an Incorporated Document shall be deemed not to
be contained in the Registration Statement or Prospectus if the
statement has been modified or superseded by any statement in a
subsequently filed Incorporated Document or in the Registration
Statement or Prospectus or in any amendment or supplement thereto.
(c) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus (exclusive of any amendments or supplements
after the date hereof), since the respective most recent dates as of
which information is given in the Registration Statement and Prospectus
(exclusive of any amendments or supplements after the date hereof),
there has not been any material adverse change or event which would
result in a material adverse effect on the condition of the Company and
its subsidiaries taken as a whole, financial or otherwise (a Material
Adverse Effect). The Company and its subsidiaries taken as a whole 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.
(e) Consolidated Natural Gas Company, Dominion Exploration &
Production, Inc., Dominion Energy, Inc., Dominion Transmission, Inc.
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
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any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, to which the Company or any subsidiary
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or
bylaws of the Company or any subsidiary, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations, and the Company has full
power and authority to authorize, issue and sell the Senior Notes as
contemplated by this Agreement.
(g) The Company is not, and, after giving effect to the offering
and sale of the Senior Notes and 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. Purchase and 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.
The obligation of the Underwriters to purchase and pay for the
Senior Notes shall be satisfied by UBS Securities LLC (UBS), acting on behalf of
the Underwriters, delivering to the Company in exchange for the Senior Notes (x)
$500,000,000 aggregate principal amount of the Company's 2003 Series C Notes due
2013, issued pursuant to the Nineteenth Supplemental Indenture dated as of
February 1, 2003 (the Exchange Notes), in accordance with arrangements
established between the Company and UBS and not involving the other
Underwriters, and (y) a cash payment in accordance with Section 5 equal to the
excess, if any, of the purchase price of the Senior Notes as set forth in
Schedule II hereto over the value of the Exchange Notes, as agreed by the
Company and UBS. The Exchange Notes will be delivered on the Closing Date by
JPMorgan Chase Bank, as Custodian for UBS, to JPMorgan Chase Bank, as Trustee,
for the account of the Company. Delivery of the Exchange Notes will be deemed to
have occurred when the Company receives notice from the Trustee that it has
received the Exchange Notes for the Company's account. Subsequently, the
Trustee, in accordance with the Company's instructions, will effect the
retirement of the Exchange Notes. Each Underwriter has authorized UBS (for such
Underwriter's account) to make payment of the purchase price for the Senior
Notes as set forth in Schedule II in accordance with the procedures set forth in
this paragraph.
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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 Section 4 and/or 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 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
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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 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 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.
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(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 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.
(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 any 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
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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 any material adverse change in the financial
markets; provided the effect of such outbreak, escalation,
declaration, calamity, crisis or material adverse change shall, in
the reasonable judgment of the Representatives, make it
impracticable to proceed with the public offering or delivery of
the Senior Notes on the terms and in the manner contemplated in
the Prospectus and in this Agreement.
(vi) On the Closing Date, the representations and
warranties of the Company in this Agreement shall be true and
correct as if made on and as of such date, and the Company shall
have performed all obligations and satisfied all conditions
required of it under this Agreement; and, on the Closing Date, the
Representatives shall have received a certificate to such effect
signed by the President or any Vice President of the Company.
(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.
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(c) If this Agreement shall be terminated by the Representatives
pursuant to Section 7(b) above or because of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement, then
in any such case, the Company will reimburse the Underwriters,
severally, for all out-of-pocket expenses (in addition to the fees and
disbursements of their outside counsel as provided in Section 6(g))
reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder and, upon such
reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Section 6(b) and Section 9.
8. Conditions of the Obligation of the Company. The obligation of the
Company to deliver the Senior Notes shall be subject to the conditions set forth
in the first sentence of Section 7(a)(i) and in Section 7(a)(ii). In case such
conditions shall not have been fulfilled, this Agreement may be terminated by
the Company by mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 6(b), 6(g), 9 and 10
hereof.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors and officers 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
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omission leading to such loss, claim, damage or liability was corrected
in the Prospectus (excluding any documents incorporated by reference)
as amended or supplemented, and such correction would have cured the
defect giving rise to such loss, claim, damage, or liability; and
provided further, however, that the indemnity agreement contained in
this Section 9(a) shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of or based upon any such
untrue statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in reliance
upon information furnished herein or otherwise in writing to the
Company by or on behalf of any Underwriter for use in the Registration
Statement or any amendment thereto, in the Prospectus or any supplement
thereto, or in any preliminary Prospectus. The indemnity agreement of
the Company contained in this Section 9(a) and the representations and
warranties of the Company contained in Section 3 hereof shall remain
operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or any such controlling person,
and shall survive the delivery of the Senior Notes.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its officers and directors,
and each person who controls any of the foregoing within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Securities
Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Securities Exchange Act, or any
other statute or common law and to reimburse each of them for any legal
or other expenses (including, to the extent hereinafter provided,
reasonable outside counsel fees) incurred by them in connection with
investigating or defending any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus, or in either such document as amended or supplemented
(if any amendments or supplements thereto shall have been furnished),
or any preliminary Prospectus (if and when used prior to the date
hereof), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such statement or omission was
made in reliance upon information furnished herein or in writing to the
Company by or on behalf of such Underwriter for 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
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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 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,
11
on the one hand, and of the Underwriters, on the other, in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations, including relative benefit.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by
the Company on the one hand or by the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above in
this Section 9(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this Section 9(d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations under this Section 9(d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
10. Termination. If 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.
12
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. Representation of UBS. UBS represents to the Company that on the
Closing Date, UBS will deliver the Exchange Notes to the Company free and clear
of any pledge, lien, security interest, encumbrance or claim that UBS created,
permitted or imposed on the Exchange Notes; and to the knowledge of UBS, the
Exchange Notes to be delivered pursuant to this Agreement were at the time
acquired by UBS, or an affiliate of UBS, free of any pledges, liens, security
interests, encumbrances or claims; and UBS has the full power and authority to
effect the delivery of the Exchange Notes as contemplated by this Agreement. UBS
has not acted and is not acting as an agent for the Company in its acquisitions
of the Exchange Notes.
13. 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.
14. 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).
[remainder of this page left blank intentionally]
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: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
14
The foregoing agreement is hereby
confirmed and accepted, as of the
date first above written.
UBS SECURITIES LLC
acting individually and as Representative
of the Underwriters named in Schedule I hereto
By: /s/ Xxxxxxxx Blue
--------------------------------
Authorized Signatory
Name: Xxxxxxxx Blue
Title: Managing Director
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Authorized Signatory
Name: Xxxxx Xxxxxxx
Title: Director
WACHOVIA CAPITAL MARKETS, LLC
acting individually and as Representative
of the Underwriters named in Schedule I hereto
By: /s/ Xxxxx X. Xxxxxxxx Xx.
--------------------------------
Authorized Signatory
Name: Xxxxx X. Xxxxxxxx Xx.
Title: Director
15
SCHEDULE I
Principal Amount
of Senior Notes
Underwriter to be Purchased
----------- ---------------
UBS Securities LLC $ 255,000,000
Wachovia Capital Markets, LLC 153,000,000
BNP Paribas Securities Corp. 25,500,000
PNC Capital Markets, Inc. 25,500,000
Xxxxxxxx Capital Partners, L.P. 25,500,000
The Xxxxxxxx Capital Group, L.P. 25,500,000
--------------
Total: $ 510,000,000
I-1
SCHEDULE II
Title of Senior Notes: 2003 Series F 5.250% Senior Notes Due 2033
`
Aggregate Principal Amount: $510,000,000
Initial Price to Public:
99.155% of the principal amount of the Series F Senior Notes
plus accrued interest, if any, from the date of issuance.
Initial Purchase Price to be paid by Underwriters:
98.480% of the principal amount of the Series F Senior Notes,
such Initial Purchase Price to be paid by the Underwriters as
set forth in Sections 4 and 5 of the Agreement to which this
Schedule is attached.
Time of Delivery: July 24, 2003, 10:00 A.M.
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
Addresses for Notices to the Underwriters:
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxxx Blue
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Wachovia Capital Markets, LLC
One Wachovia Center
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
II-1
with a copy of any notice pursuant to Section 9(c) also sent to:
Xxxxxxxx Xxxxxxx LLP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: F. Xxxxxxxxx Xxxxxxxx, Xx., Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
II-2
SCHEDULE III
PROPOSED FORM OF OPINION
OF
XXXXXXXX XXXXXXX LLP
Bank of America Center
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
DOMINION RESOURCES, INC.
2003 Series F 5.250% Senior Notes Due 2033
July 24, 2003
UBS Securities LLC
Wachovia Capital Markets, LLC
as Representatives for the Underwriters
listed in Schedule I to the Underwriting Agreement
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
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. $510,000,000
aggregate principal amount of its 2003 Series F 5.250% Senior Notes Due 2033
(the Senior Notes) and the offering of the Senior Notes by you pursuant to an
Underwriting Agreement dated July 21, 2003 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 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
III-1
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 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, subject to the retirement of the
Exchange Notes as set forth in Section 4 of the Underwriting Agreement. No
approval or consent by any public regulatory body, other than such order and
notification of effectiveness by the Commission and approvals required under the
Securities Act and the Rules and Regulations which have been obtained, is
legally required in connection with the sale of the Senior Notes as contemplated
by the Underwriting Agreement (except to the extent that compliance with the
provisions of securities or blue sky laws of certain states may be required in
connection with the sale of the Senior Notes in such states) and the carrying
out of the provisions of the Underwriting Agreement.
3. The Underwriting Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by the
Company.
4. The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
5. The Senior Notes have been duly authorized and executed by the
Company and when completed and authenticated by the Trustee in accordance with,
and in the form contemplated by, the Indenture and issued, delivered and paid
for as provided in the Underwriting Agreement, will have been duly issued under
the Indenture and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by
III-2
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 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. The statements relating to the Senior Notes contained in the
prospectus initially filed as part of the Registration Statement under the
captions: DESCRIPTION OF DEBT SECURITIES and ADDITIONAL TERMS OF THE SENIOR DEBT
SECURITIES, as all or any of them have been supplemented by the statements under
the caption DESCRIPTION OF THE SENIOR NOTES in the prospectus supplement dated
July 21, 2003, are accurate and do not omit any material fact required to be
stated therein or necessary to make such statements not misleading.
* * * * *
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, and 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 accordingly assume no responsibility for the accuracy or
completeness of the statements made in the Registration Statement, except as
stated in the preceding paragraph in regard to the statements relating to the
Senior Notes under 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 it 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. In
addition, we participated in one or more due diligence conferences with
representatives of the Company and attended the closing at which the Company
satisfied the conditions contained in the Underwriting Agreement. None of the
foregoing participation, review or attendance disclosed to the lawyers in this
firm who have given substantive legal attention to the representation of the
Underwriters in connection with the issuance and sale of the Senior Notes, 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 contains on the
date hereof (in all cases, excepting the financial statements and schedules and
other financial information contained or
III-3
incorporated therein by reference, any pro forma financial information and notes
thereto, and the Statement of Eligibility of the Trustee filed on Form T-1 under
the Trust Indenture Act, included or incorporated by reference into the
Registration Statement or the Prospectus, as to which we express no belief) any
untrue statement of a material fact or omitted on said date or now omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The foregoing assurance is 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.
In rendering the opinions set forth in paragraphs (1) - (8) above and
in making the statements expressed in the preceding paragraph, 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
Re: DOMINION RESOURCES, INC.
2003 Series F 5.250% Senior Notes Due 2033
July 24, 2003
UBS Securities LLC
Wachovia Capital Markets, LLC
as Representatives for the Underwriters
listed in Schedule I to the Underwriting Agreement
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
We have acted as counsel to Dominion Resources, Inc., a Virginia
corporation (the Company), in connection with the issuance and sale by the
Company of up to U.S. $510,000,000 aggregate principal amount of 2003 Series F
5.250% Senior Notes due 2033 (the Senior Notes) pursuant to an Underwriting
Agreement dated July 21, 2003, by and between the Company and the Underwriters
listed on Schedule I attached thereto (the Underwriting Agreement). This letter
is being delivered to you pursuant to the Underwriting Agreement. All terms not
otherwise defined herein have the meanings set forth in the Underwriting
Agreement.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee,
IV-5
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.
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 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, subject to the retirement of the
Exchange Notes as set forth in Section 4 of the Underwriting Agreement.
2. The Indenture has been 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 whether enforcement is in a
proceeding in equity or at law).
3. The Senior Notes have been duly authorized and executed by the
Company and, when completed and authenticated by the Trustee in accordance with,
and in the form contemplated by, the Indenture and issued, delivered and paid
for 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 whether enforcement is in a proceeding
in equity or at law).
4. The Registration Statement (Reg. No. 333-106790) 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
of the Senior Notes in the manner therein specified.
IV-6
5. The Registration Statement and the Prospectus (except the
financial statements, any pro forma financial 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 SENIOR
DEBT SECURITIES, as supplemented by the statements under DESCRIPTION OF THE
SENIOR NOTES in the Prospectus Supplement dated July 21, 2003, 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 participated in one or more due diligence conferences with
representatives of the Company and attended 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 statements described 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, any pro forma financial
information and schedules and other financial information and the Statement of
Eligibility of the Trustee filed on Form T-1 under the Trust Indenture Act,
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 will 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.
IV-7
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,
MCGUIREWOODS LLP
IV-8
SCHEDULE V
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
DOMINION RESOURCES, INC.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: DOMINION RESOURCES, INC.
2003 Series F 5.250% Senior Notes Due 2033
July 24, 2003
To: The Addressees Listed on Annex A
Ladies and Gentlemen:
The arrangements for issuance of up to U.S. $510,000,000 aggregate
principal amount of 2003 Series F 5.250% Senior Notes due 2033 (the Senior
Notes), of Dominion Resources, Inc. (the Company), pursuant to an Underwriting
Agreement dated July 21, 2003, by and between the Company and the Underwriters
listed on Schedule I attached thereto (the Underwriting Agreement), have been
taken under my supervision as Vice President and General Counsel of the Company.
Terms not otherwise defined herein have the meanings set forth in the
Underwriting Agreement.
As Vice President and General Counsel of the Company, I have general
responsibility over the attorneys within the Company's Legal Department
responsible for rendering legal counsel to the Company regarding corporate,
financial, securities and other matters. I am generally familiar with the
organization, business and affairs of the Company. I am also familiar with the
proceedings taken and proposed to be taken by the Company in connection with the
offering and sale of the Senior Notes, and I have examined such corporate
records, certificates and other documents and such questions of the law as I
have considered necessary or appropriate for the purposes of this opinion. In
addition, I have responsibility for supervising lawyers who may have been asked
by me or others to review legal matters arising in connection with the offering
and sale of the Senior Notes. Accordingly, some of the matters referred to
herein have not been handled personally by me, but I have been made familiar
with
V-1
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 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,
GENERAL COUNSEL
V-2
Annex A
UBS Securities LLC
Wachovia Capital Markets, LLC
as Representatives for the Underwriters
listed in Schedule I to the Underwriting Agreement
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
