__________ ____% Trust Preferred Securities
DOMINION CNG CAPITAL TRUST II
guaranteed by
CONSOLIDATED NATURAL GAS COMPANY
UNDERWRITING AGREEMENT
[Date]
[Underwriter]
for themselves and as Representatives for the Underwriters
named in Schedule I, attached hereto
[Underwriter]
[Address]
[Underwriter]
[Address]
Ladies and Gentlemen:
Dominion CNG Capital Trust II (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 Consolidated Natural Gas Company, a Delaware corporation (the Company) (the
Company and, together with the Trust, the Offerors), confirm their agreement
(the Agreement) with [Lead Underwriter] and each of the other Underwriters named
in Schedule I (collectively, including the Representatives, 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) under the terms specified in Schedule II hereto. The
Trust Preferred Securities will be fully and unconditionally guaranteed by the
Company (the Trust Preferred Securities Guarantee), 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
Agreement), to be dated as of __________, ____, between the Company and Bank One
Trust Company, National Association, 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 Date (as defined in Section 4 herein) (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 Debentures, due __________,
____ (the Subordinated Debentures) issued by the Company. The Trust Preferred
Securities and the Common Securities will be issued pursuant to the Trust
Agreement, dated as of March 28, 2002, as amended and restated by the Amended
and Restated Trust Agreement of Dominion CNG Capital Trust II, to be dated as of
__________, ____ (the Trust Agreement), among the Company, as sponsor, Xxxxx X.
Xxxxxx and X. Xxxxx Xxxxxx, as administrative trustees (the Administrative
Trustees), Bank One Trust Company, National Association, as property trustee
(the Property Trustee), and Bank One Delaware, Inc., as Delaware trustee (the
Delaware Trustee and, together with the Property Trustee, the Administrative
Trustees, and the Debenture Trustee, as defined below, the Trustees). The
Subordinated Debentures will be issued pursuant to an indenture dated as of
October 1, 2001, as supplemented by a Second Supplemental Indenture dated as of
__________, ____ (collectively, the Indenture), between the Company and Bank One
Trust Company, National Association, 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 __________, ____,
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 Agreement, 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
--------------------------------
severally represent and warrant to each Underwriter as of the date hereof and
as of the Closing Date, 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) 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 dated __________, ____, relating to the Securities
and other securities included in the Registration Statement, which prospectus is
now proposed to be supplemented by a prospectus 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
2
Statement", "prospectus" and "Prospectus" include all documents (including any
Current Report on Form 8-K) incorporated therein by reference, and shall include
any documents (including any Current Report on Form 8-K) filed after the date of
such Registration Statement, prospectus or Prospectus and incorporated therein
by reference from the date of filing of such incorporated documents
(collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus has
been issued by the Commission and is in effect and no proceedings for that
purpose are pending before or, to the knowledge of the Offerors, threatened by
the Commission. The Registration Statement and the Prospectus comply in all
material respects with the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended (the Securities Exchange Act), the Trust
Indenture Act of 1939, as amended (the Trust Indenture Act), and the rules,
regulations and releases of the Commission (the Rules and Regulations) and,
neither the Registration Statement on the date it was declared effective (the
Effective Date) nor the Prospectus on the date hereof contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and, on the Closing Date (as defined below), the Registration
Statement and the Prospectus (including any amendments and supplements thereto)
will conform in all respects to the requirements of the Securities Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such documents
will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, that the foregoing representations and
warranties in this Section 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 an Offeror 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
Company Material Adverse Effect) and there has not been any material adverse
change or event which would result in a material adverse effect on the condition
of the Trust, financial or otherwise (a Trust Material Adverse Effect). The
Company and its subsidiaries taken as a whole has no material contingent
financial obligation which is not disclosed in the Registration Statement and
the Prospectus. The Trust has no material contingent financial obligation which
is not disclosed in the Registration Statement and the Prospectus.
3
(d) Deloitte & Touche LLP, who have certified certain of the
Company's financial statements filed with the Commission and incorporated by
reference in the Registration Statement, PricewaterhouseCoopers LLP, who have
certified certain of Consolidated Natural Gas Company's financial statements
filed with the Commission and incorporated by reference in the Registration
Statement, and Ernst & Young LLP, who have certified certain of Xxxxx Xxxxxxx
Natural Gas Company's financial statements, are independent public accountants
as required by the Securities Act and the Rules and Regulations relating to the
Securities Act.
(e) The Peoples Natural Gas Company, The East Ohio Gas Company,
Dominion Exploration & Production, Inc., Dominion Oklahoma Texas Exploration &
Production, Inc. and Dominion Transmission, Inc. are the only Significant
Subsidiaries of the Company as such term is defined in Rule 1-02 of Regulation
S-X. All of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable, and the capital stock of each Significant Subsidiary is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, claim, encumbrance or equitable right.
(f) The Trust has been duly created and is validly existing and in
good standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement and the Trust Agreement; the Trust is and will
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 as such term is defined
in Rule 1-02 of Regulation S-X, 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. The Trust is duly qualified 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 Trust Material Adverse Effect.
(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 set forth in the Trust Agreement, 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. The issuance of the
Common Securities is not subject to preemptive or other similar rights. On the
Closing Date, 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. Subject to the terms of the Trust Agreement, the holders of
the Trust Preferred Securities, as beneficial owners of Trust Preferred
4
Securities of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware except that the
holders of the Trust Preferred Securities may be obligated to provide (a)
indemnity or security in connection with, and pay taxes or governmental charges
arising from, transfers or exchanges of Trust Preferred Securities certificates
and the issuance of replacement Trust Preferred Securities certificates, and (b)
security and indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the Trust Agreement.
(i) The Trust Preferred Securities Guarantee Agreement, the Trust
Agreement, the Subordinated Debentures, the Expenses Agreement and the Indenture
have each been duly authorized by the Company and when validly executed and
delivered by the Company and, in the case of the Trust Preferred Securities
Guarantee Agreement, by the Guarantee Trustee, in the case of the Trust
Agreement, by the Trustees thereto, in the case of the Indenture, by the
Debenture Trustee, and in the case of the Subordinated Debentures, when validly
issued by the Company and duly authenticated and delivered by the Debenture
Trustee, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law); the Subordinated Debentures when validly
issued by the Company and duly authenticated and delivered by the Debenture
Trustee, will be entitled to the benefits of the Indenture.
(j) The execution, delivery and performance of the Operative
Documents, the Common Securities and the Trust Preferred Securities by the Trust
and the consummation of the transactions contemplated in the Operative
Documents, the Common Securities, the Trust Preferred Securities and in the
Registration Statement (including the issuance and sale of the Common Securities
and the Trust Preferred Securities by the Trust and the use of the proceeds from
the sale of the Common Securities and the Trust Preferred Securities as
described in the Prospectus under the caption "Use of Proceeds") by the Trust
and compliance by the Trust with its obligations under the Operative Documents,
the Common Securities and Trust Preferred Securities do not and will not,
whether with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Trust pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, to which the
Trust 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 Trust is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not result in
a Trust Material Adverse Effect), nor will such action 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 a Trust Material Adverse Effect, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Trust. The Trust
is not a party to or otherwise bound by any material agreement other than those
described in the Prospectus.
5
(k) The execution, delivery and performance of the Operative
Documents and the Subordinated Debentures by the Company and the consummation of
the transactions contemplated in the Operative Documents, the Subordinated
Debentures and the Registration Statement (including the issuance and sale of
the Subordinated Debentures and the use of the proceeds from the sale of the
Subordinated Debentures as described in the Prospectus under the caption "Use of
Proceeds") by the Company and compliance by the Company with its obligations
under the Operative Documents and the Subordinated Debentures do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Company
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 Subordinated Debentures and authorize and issue
the Trust Preferred Securities Guarantee as contemplated by this Agreement.
(l) Each of the Company and the Trust is not, and following
consummation of the transactions contemplated by the Operative Documents 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 (the 1940 Act).
Section 2. Offering. The Underwriters have advised the Company that the
--------
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
and at the price specified in Schedule II hereto.
Section 3. 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 Trust agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Trust, at a price of $__ per Trust Preferred Security, at a place and
time hereinafter specified, 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 9 hereof. The Underwriters agree to make a
public offering of their respective Trust Preferred Securities 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 such offering without notice.
6
Section 4. Time and Place of Closing. Deliveries of certificates for the
-------------------------
Trust Preferred Securities, 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 signed by the
Representatives and the Offerors (such time and date of payment and delivery
being herein called the "Closing Date").
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 Date. It is understood that each Underwriter has authorized each of the
Representatives, 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 not later than 12:00
P.M. on the last business day prior to the Closing Date.
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 on the
Closing Date to the Representatives by wire transfer in immediately available
funds, for the accounts of the several Underwriters, $0.____ per Trust Preferred
Security to be delivered hereunder on the Closing Date.
Section 5. Covenants of the Offerors. The Company and the Trust jointly
-------------------------
and severally agree to the following with each of the Underwriters:
(a) If the Representatives so request, the Offerors, 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 Securities, (iii)
any fees and expenses of the Trustees, (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), and
(v) the fees and expenses incurred in connection with any listing of the Trust
Preferred Securities and, if applicable, the Subordinated Debentures, on the New
York Stock Exchange. 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 Securities under state
7
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
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
Trust Preferred 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. During the period
specified above, the Company will continue to prepare and file with the
Commission on a timely basis all documents or amendments required under the
Securities Exchange Act and the applicable rules and regulations of the
Commission thereunder; provided, that the Company shall not file such documents
or amendments without also furnishing copies thereof to the Representatives and
Xxxxxxxx Xxxxxxx LLP. Any such documents or amendments which are electronically
available through the Commission's XXXXX filing system shall be deemed to have
been furnished by the Company to the Representatives and Xxxxxxxx Xxxxxxx LLP.
(d) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Representatives a reasonable opportunity to comment on any
such proposed amendment or supplement; 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 Offerors will furnish such proper information as may
be lawfully required and otherwise cooperate in qualifying the Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may designate; provided, however, that the Offerors shall
not be required in any state to qualify as a foreign corporation or business
entity, or to file a general consent to service of process, or to submit to any
requirements which either of them deems unduly burdensome.
(g) Xxxx 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 5(b)), shall be paid
by the Underwriters; provided, however, that if this Agreement is terminated in
accordance with the provisions of Sections 6 or 7 hereof, the
8
Company shall reimburse the Representatives for the account of the Underwriters
for the amount of such fees and disbursements.
(h) During a period of thirty (30) days beginning on the date
of this Agreement, the Company and the 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, any Subordinated Debentures, or
any other securities of the Trust or any other similar debt securities of the
Company which are substantially similar to the Trust Preferred Securities or the
Subordinated Debentures, without the prior written consent of the
Representatives.
(i) [The Company will use its best efforts to cause the Trust
Preferred Securities to be listed on the New York Stock Exchange, subject to
official notice of issuance. If the Trust Preferred Securities are exchanged for
Subordinated Debentures, the Company will use its reasonable best efforts to
effect the listing of the Subordinated Debentures on any exchange on which the
Trust Preferred Securities are then listed.] [Retail transaction only]
SECTION 6. Conditions of Underwriters' Obligations; Termination by the
-----------------------------------------------------------
Underwriters.
------------
(a) The obligations of the Underwriters to purchase and pay
for the Trust Preferred Securities on the Closing Date shall be subject to the
following conditions on such Closing Date:
(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 Offerors threatened by, the
Commission on such date. The Representatives shall have
received, prior to payment for the Trust Preferred Securities,
a certificate dated the Closing Date and signed by the
President or any Vice President of the Company and an
Administrative Trustee of the Trust 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
or the Trust, threatened by the Commission.
(ii) On the Closing Date, an order or orders of the
Commission pursuant to the Public Utility Holding Company Act
of 1935, as amended (the 1935 Act) permitting the issuance and
sale of the Securities of the Company and the Trust, as
applicable, 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;
XxXxxxxXxxxx LLP, counsel to the Company and special tax
counsel to the Company; the Company's General Counsel;
Xxxxxxxx, Xxxxxx &
9
Xxxxxx, P.A., special Delaware counsel to the Offerors; Xxxxxx
Xxxxxxxx, counsel to the Delaware Trustee under the Trust
Agreement and counsel to the Debenture Trustee, the Guarantee
Trustee and the Property Trustee; each such opinion being
substantially in the forms attached hereto as Schedules III,
IV, V, VI and VII, as applicable, and all in form and
substance satisfactory to the Representatives.
(iv) The Representatives shall have received the
following letters addressed to the Representatives, containing
statements and information of the type ordinarily included in
accountants' SAS 72 "comfort letters" to underwriters, with
respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, including the pro forma financial information: (A)
letters from Deloitte & Touche LLP, dated the date of this
Agreement and dated the Closing Date, with respect to the
Company and the Trust; and (B) a letter from
PricewaterhouseCoopers LLP, dated the date of this Agreement,
with respect to the Company for periods ending not later than
December 31, 1999.
(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 of the Company or any securities of the Trust
(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 Trust
or the Company and its subsidiaries taken as a whole, or (3)
any material transaction entered into by the Trust, the
Company or a Significant Subsidiary other than a transaction
in the ordinary course of business, the effect of which in
each such case in the reasonable judgment of the
Representatives is so material and so adverse that it makes it
impracticable to proceed with the public offering or delivery
of the Securities on the terms and in the manner contemplated
in the Prospectus and this Agreement; or (B) there shall not
have occurred (1) a downgrading in the rating accorded to any
of the Company's junior subordinated debentures or any of the
securities of the Trust, or securities that are pari passu to
the Junior Subordinated Debentures or the Trust Preferred
Securities, 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
10
calamity or crisis resulting in the declaration of a national
emergency, or if there has occurred any material adverse
change in the financial markets; provided, the effect of such
outbreak, escalation, declaration, calamity, crisis or
material adverse change shall, in the reasonable judgment of
the Representatives, make it impracticable to proceed with the
public offering or delivery of the Securities 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 Offerors in this Agreement shall be true and
correct as if made on and as of such date, and the Offerors
shall have performed all obligations and satisfied all
conditions required of it under this Agreement; and, at the
Closing Date, the Representatives shall have received
certificates to such effect signed by the President or any
Vice President of the Company and an Administrative Trustee of
the Trust.
(vii) All legal proceedings to be taken in connection
with the issuance and sale of the Securities shall have been
satisfactory in form and substance to Xxxxxxxx Xxxxxxx LLP.
(viii) A Special Event as defined in the Indenture
shall not have occurred and be continuing.
(b) In case any of the conditions specified above in Section
6(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 6(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 total number of Trust Preferred Securities
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 8 and
Sections 5(b), 5(g) and 6(c) hereof.
(c) If this Agreement shall be terminated by the
Representatives pursuant to Section 6(b) above or because of any
failure or refusal on the part of the Offerors to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any
reason the Offerors 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 5(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 5(b) and Section 8.
SECTION 7. Conditions of the Obligation of the Company. The
-------------------------------------------
obligation of the Offerors to deliver the Securities shall be subject to the
conditions set forth in the first sentence of Section 6(a)(i) and in Section
6(a)(ii). In case said conditions shall not have been fulfilled, this Agreement
may be terminated by the Offerors by mailing or delivering written notice
thereof
11
to the Representatives. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections 5(b), 5(g), 8
and 9 hereof.
SECTION 8. Indemnification and Contribution. (a) Each Offeror agrees,
--------------------------------
jointly and severally, to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse each such Underwriter
and controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating or defending any such losses, claims, damages, or
liabilities, or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or in either such
document as amended or supplemented (if any amendments or supplements thereto
shall have been furnished), or any preliminary Prospectus (if and when used
prior to the date hereof), or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the foregoing 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 Trust Preferred Securities 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 Offerors satisfied their obligations pursuant to Section
5(a) hereof, if the misstatement or omission leading to such loss, claim, damage
or liability was corrected in the Prospectus (excluding any documents
incorporated by reference) as amended or supplemented, and such correction would
have cured the defect giving rise to such loss, claim, damage, or liability; and
provided further, however, that the indemnity agreement contained in this
Section 8(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 Offerors 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 Offerors contained in this Section 8(a) and the representations and
warranties of the Offerors contained in Section 1 hereof shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or any such controlling person, and shall survive the
delivery of the Trust Preferred Securities.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
Section 8(a).
12
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Offerors, their 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 Offerors 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
8(c) shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Offerors or any such controlling
person, and shall survive the delivery of the Trust Preferred Securities.
(d) Each of the Offerors and each of the Underwriters agrees that,
upon the receipt of notice of the commencement of any action against either of
the Offerors or any of its officers, directors, or any person controlling either
of the Offerors, or against such Underwriter or controlling person as aforesaid,
in respect of which indemnity may be sought on account of any indemnity
agreement contained herein, it will promptly give written notice of the
commencement thereof to the party or parties against whom indemnity shall be
sought hereunder, but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or parties
from any liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of any such
action shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense or, if it so elects, to assume (in
conjunction with any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen by such
indemnifying party (or parties) and satisfactory to the indemnified party or
parties who shall be defendant or defendants in such action, and such defendant
or defendants shall bear the fees and expenses of any additional outside counsel
retained by them; provided that, if the defendants (including impleaded parties)
in any such action include both the indemnified party and the indemnifying party
(or parties) and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party (or parties), the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to participate otherwise in
the defense of such action on behalf of such indemnified party. The indemnifying
party shall bear the reasonable fees and expenses of outside counsel retained by
the indemnified party if (i) the indemnified party shall have retained such
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the preceding sentence (it being understood, however, that the
13
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 8(a) or 8(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 (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) 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.
(e) If the indemnification provided for in this Section 8(a) or 8(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 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 you on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Offerors and you agree that it would not be just
and equitable if contribution pursuant to this Section 8(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 8(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 8(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. The Underwriters' obligations under this Section
8(e) to contribute are several in proportion to their respective underwriting
obligations and not joint. The remedies provided for in this Section 8 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.
14
SECTION 9. Termination. If any one or more of the Underwriters shall fail
-----------
or refuse to purchase the Trust Preferred Securities which it or they have
agreed to purchase hereunder, and the total number of the Trust Preferred
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the total number of the
Trust Preferred Securities, then the other Underwriters shall be obligated
severally in the proportions which the number of Trust Preferred Securities 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 Trust Preferred
Securities 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 Trust Preferred Securities and the total number of the Trust
Preferred Securities with respect to which such default occurs is more than one-
tenth of the total number of the Trust Preferred Securities and arrangements
satisfactory to the Underwriters and the Company for the purchase of such Trust
Preferred Securities 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 5(g) and Section 8) or of the Company
(except as provided in Section 5(b) and Section 8). 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 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 10. 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 and/or the Trust 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/or the Trust,
and shall survive delivery of the Securities.
SECTION 11. 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 Trust, the Underwriters and, with
respect to the provisions of Section 8 hereof, each controlling person and each
officer and director of the Company and the Trust referred to in Section 8, 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 Trust Preferred Securities from any of the several Underwriters.
SECTION 12. Notices. All communications hereunder shall be in writing and
-------
if to the Underwriters shall be mailed, faxed or delivered to the
Representatives at the address set forth on Schedule II hereto; or if to the
Company shall be mailed, faxed or delivered to it, attention of Treasurer,
Consolidated Natural Gas Company, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000
(facsimile number: (000) 000-0000) or if to the Trust or the Administrative
Trustees, shall be mailed, faxed or delivered to it or them, attention of
Treasurer, Consolidated Natural Gas Company, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, (facsimile number: (000) 000-0000).
15
Please sign and return to us a counterpart of this letter, whereupon
this letter will become a binding agreement between the Company, the Trust and
the several Underwriters in accordance with its terms.
16
Very truly yours,
DOMINION CNG CAPITAL TRUST I
By: CONSOLIDATED NATURAL GAS COMPANY,
as Sponsor
By:_______________________________________
Name:
Title:
CONSOLIDATED NATURAL GAS COMPANY
By:_______________________________________
Name:
Title:
17
Agreed, this ___ day of __________, ____
[Lead Underwriter]
Each acting severally on behalf of itself and for the
several Underwriters named herein
By: ______________________________
By: ______________________________
Authorized Signatory
Name:
Title:
18
SCHEDULE I
Number of Trust Preferred Securities
Underwriter to be Purchased
----------- ------------------------------------
_________
Total:
I-1
SCHEDULE II
Title of Security: ___% Trust Preferred Securities (liquidation amount $__ per
security)
Distribution Rate on Trust Preferred Securities: ___%
Coupon on Subordinated Debentures: ___%
Total Number of Trust Preferred Securities Being Offered: __________
Price to Public Per Trust Preferred Security: $__
Total Price to Public: $__________
Underwriting Commissions Per Trust Preferred Security: $0.____
Total of Underwriting Commissions: $__________
Proceeds to the Trust Per Trust Preferred Security: $__
Total Proceeds to the Trust: $__________
Time of Delivery: __________, ____, 10:00 A.M.
Closing Location: One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
The Trust Preferred Securities will be available for inspection by the
Representatives at:
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
II-1
Address for Notices to the Underwriters:
_____________________________________
_____________________________________
_____________________________________
with a copy of any notice pursuant to Section 8(d) also sent to:
Xxxxxxxx Xxxxxxx LLP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxxxxxx Xxxxxxxx, Xx., Esquire
facsimile number: (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
RE: DOMINION CNG CAPITAL TRUST II
Guaranteed By
CONSOLIDATED NATURAL GAS COMPANY
__________ ___% Trust Preferred Securities
__________, ____
[Lead Underwriter]
____________________________
for themselves and as Representatives for the Underwriters
named in Schedule I, attached hereto
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase
by you, acting severally and not jointly, from Dominion CNG Capital Trust II, of
an aggregate of _________ of ___% Trust Preferred Securities (liquidation amount
of $__ per security) of the Trust pursuant to the terms of the Underwriting
Agreement dated __________, ____ (the Underwriting Agreement).
III-1
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 and the Trust, indentures, agreements and
other instruments, certificates of public officials, certificates of officers
and representatives of the Company, of the Trust and of each of the Trustees,
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 Trust, the Trustees
and other appropriate persons and statements contained in the Registration
Statement hereinafter mentioned. All legal proceedings taken as of the date
hereof in connection with the transactions contemplated by the Underwriting
Agreement have been satisfactory to us.
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, One Xxxxx Center, Richmond, Virginia, at which the Company and
the Trust satisfied the conditions contained in Section 7 of the Underwriting
Agreement that are required to be satisfied as of the Closing Date.
Based upon the foregoing, and having regard to legal considerations
that we deem relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Delaware, and has the corporate
power to transact its business as described in the Prospectus.
2. An appropriate order of the Securities and Exchange Commission
(the "Commission") with respect to the sale of the Securities 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 Securities as contemplated by the Underwriting
Agreement. No approval or consent by any public regulatory body, other than such
order and notification of effectiveness by the Commission, is legally required
in connection with the sale of the Securities 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 Securities 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 Trust Agreement has been duly authorized by all necessary
corporate action of the Company and has been duly executed and delivered by the
Company, the Administrative Trustees, the Property Trustee and the Delaware
Trustee 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 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).
III-2
6. The Expenses Agreement has been duly authorized by all necessary
corporate action of the Company and has been duly executed and delivered by the
Company and the Trust 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).
7. The Trust Preferred Securities Guarantee Agreement has been duly
authorized by all necessary corporate action of the Company and has been duly
executed and delivered by the Company and the Guarantee Trustee 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).
8. The Subordinated Debentures have been duly authorized and executed
by the Company and, when authenticated by the Debenture 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 and
validly issued under the Indenture and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
9. The Registration Statement (Reg. No. 333-_____) with respect to the
Securities filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of Securities in the manner therein specified.
10. 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.
11. As to the statements relating to the Securities contained in the
prospectus initially filed as part of the Registration Statement under
DESCRIPTION OF DEBT SECURITIES, ADDITIONAL TERMS OF JUNIOR SUBORDINATED
DEBENTURES, DESCRIPTION OF TRUST PREFERRED SECURITIES, DESCRIPTION OF GUARANTEE,
and RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE GUARANTEE AND THE
JUNIOR SUBORDINATED DEBENTURES HELD BY THE TRUST as all or any of them have been
supplemented by the statements under SPECIFIC TERMS OF THE TRUST PREFERRED
SECURITIES and SPECIFIC TERMS OF THE
III-3
JUNIOR SUBORDINATED DEBENTURES, in the Prospectus Supplement dated __________,
____ are accurate and do not omit any material fact required to be stated
therein or necessary to make such statements not misleading.
As to the statistical statements in the Registration Statement (which
includes statistical statements in the Incorporated Documents), we have relied
solely on the officers of the Company. We have not undertaken to determine
independently the accuracy or completeness of the statements contained or
incorporated by reference in the Registration Statement or in the Prospectus. We
accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement except as stated above in the
preceding paragraph in regard to the captions set forth in such preceding
paragraph. We note that the Incorporated Documents were prepared and filed by
the Company without our participation. We have, however, participated in
conferences with counsel for and representatives of the Company and the Trust in
connection with the preparation of the Registration Statement, the Prospectus as
it was initially issued and as has been supplemented or amended, and we have
reviewed the Incorporated Documents and such of the corporate records of the
Company and the Trust as we deemed advisable. None of the foregoing disclosed to
us any information that gives us reason to believe that the Registration
Statement contained on the date the Registration Statement became effective, or
the Prospectus contained on the date it was issued, or the date it was
supplemented or amended, or that the Registration Statement or the Prospectus
contains on the date hereof, any untrue statement of a material fact or omitted
or omits on the date hereof, to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
foregoing assurance is provided on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus prior to the date of the Underwriting Agreement.
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. In rendering the foregoing opinions, we have, with your consent, relied
solely upon the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., dated the date
hereof and addressed to you. This opinion may
III-4
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-5
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
RE: DOMINION CNG CAPITAL TRUST II
Guaranteed By
CONSOLIDATED NATURAL GAS COMPANY
_________ ___% Trust Preferred Securities
__________, ____
_____________________________
_____________________________
for themselves and as Representatives for the Underwriters
named in Schedule I, attached hereto
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
Ladies and Gentlemen:
The arrangements for issuance of _________ ___% Trust Preferred
Securities (liquidation amount $__ per security) (the Trust Preferred
Securities) of Dominion CNG Capital Trust II (the Trust), pursuant to an
Underwriting Agreement dated __________, ____, by and among the Trust,
Consolidated Natural Gas Company (the Company) and the Underwriters listed on
Schedule I as attached thereto (the Underwriting Agreement), have been taken
under our supervision as counsel for the Company and the Trust. 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 and the Trust,
indentures, agreements, and other instruments,
IV-1
certificates of public officials, certificates of officers and representatives
of the Company, of the Trust and each of the Trustees, and other documents, as
we have deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company, the Trust, the Trustees 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.
With respect to the opinions hereinafter expressed that are
dependent upon Delaware law, we are relying upon the opinion dated the date
hereof rendered to you by Xxxxxxxx, Xxxxxx & Xxxxxx, P.A. (the Xxxxxxxx Xxxxxx
Opinion), and our opinions in this regard are subject to the exceptions,
qualifications and assumptions set forth in the following paragraphs in the
Xxxxxxxx Xxxxxx Opinion: B (except with respect to the Company and the
Administrative Trustees, provided that we have also assumed the legal capacity
of the Administrative Trustees, and provided further that we have not made the
assumption set forth in paragraph B (viii)), C(iii), D (except with regard to
the execution of the Operative Documents by the Company and the Administrative
Trustees) and F.
Based upon the foregoing, and having regard for legal
considerations that we deem relevant, we are of the opinion that:
1. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than those required
under the Public Utility Holding Company Act of 1935, as amended, the Securities
Act and the Rules and Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states) is
necessary or required in connection with the due authorization, execution and
delivery of the Underwriting Agreement or the due execution, delivery or
performance of the Operative Documents or for the offering, issuance, sale or
delivery of the Securities. An appropriate order of the Commission with respect
to the sale of the Securities 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 issuance and sale of
the Securities as contemplated by the Underwriting Agreement.
2. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed, and delivered by, and
constitutes a valid and binding obligation of, the Company, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
3. The Trust Agreement has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed, and delivered by,
and constitutes a valid and binding obligation of, the Company, enforceable in
accordance with its terms, subject to the effects of
IV-2
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
4. The Trust Preferred Securities Guarantee Agreement has been
duly qualified under the Trust Indenture Act and each of the Trust Preferred
Securities Guarantee and the Expenses Agreement has been duly authorized,
executed, and delivered by, and constitutes a valid and binding obligation of,
the Company, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
5. The Subordinated Debentures have been duly authorized and
executed by the Company and, when authenticated by the Debenture Trustee in
accordance with, and in the form contemplated by, the Indenture and issued,
delivered and paid for in accordance with the Underwriting Agreement, will have
been duly and validly issued under the Indenture and will constitute valid and
binding obligations of the Company entitled to the benefits provided by the
Indenture, in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
6. The Securities and the Operative Documents, when the Trust
Preferred Securities are delivered pursuant to the Underwriting Agreement,
conform to the descriptions thereof contained in the Registration Statement and
the Prospectus.
7. The Common Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when issued
and delivered by the Trust to the Company against payment therefor as described
in the Trust Agreement, will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; and the issuance of
the Common Securities is not subject to preemptive or other similar rights.
8. The Trust Preferred Securities have been duly authorized by
the Trust Agreement and (subject to the terms of the Trust Agreement) when
delivered to and paid for by the Representatives pursuant to the Underwriting
Agreement, will be validly issued, fully paid and non assessable undivided
beneficial interests in the assets of the Trust; the holders of the Trust
Preferred Securities will (subject to the terms of the Trust Agreement) be
entitled to the same limit of personal liability under Delaware law as is
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; and the issuance of the Trust
Preferred Securities is not subject to preemptive or other similar rights.
IV-3
9. The Registration Statement (Reg. No. 333-_____) with
respect to the Securities filed pursuant to the Securities Act, has become
effective and remains in effect at this date, and the Prospectus may lawfully be
used for the purposes specified in the Securities Act in connection with the
offer for sale and the sale of the Securities in the manner therein specified.
10. The Registration Statement and the Prospectus appear on
their face to be appropriately responsive in all material respects to the
requirements of the Securities Act, and to the applicable rules and regulations
of the Commission thereunder (except that we express no comment or belief with
respect to the historical or pro forma financial statements and schedules and
other financial or statistical information contained in the Registration
Statement or Prospectus).
11. We are of the opinion that the statements relating to the
Operative Documents and the Securities contained in the prospectus initially
filed as part of the Registration Statement under DESCRIPTION OF DEBT
SECURITIES, ADDITIONAL TERMS OF JUNIOR SUBORDINATED DEBENTURES, DESCRIPTION OF
TRUST PREFERRED SECURITIES, DESCRIPTION OF GUARANTEE, and RELATIONSHIP AMONG
THE TRUST PREFERRED SECURITIES, THE GUARANTEE AND THE JUNIOR SUBORDINATED
DEBENTURES HELD BY THE TRUST as all or any of them have been supplemented by
the statements under SPECIFIC TERMS OF THE TRUST PREFERRED SECURITIES and
SPECIFIC TERMS OF THE JUNIOR SUBORDINATED DEBENTURES, in the Prospectus
Supplement dated __________, ____ are substantially accurate and fair.
12. With regard to the discussion in the Prospectus Supplement
under the caption MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES, we
are of the opinion that under current United States federal income tax law,
although the discussion does not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership and disposition of
the Subordinated Debentures, (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) such discussion constitutes a fair and accurate summary
of the matters discussed therein in all material respects. In rendering the
aforementioned tax opinion, we have considered the current provisions of the
Internal Revenue Code of 1986, as amended, Treasury regulations promulgated
thereunder, judicial decisions and Internal Revenue Service rulings, all of
which are subject to change, which changes may be retroactively applied. A
change in the authorities upon which our opinion is based could affect our
conclusions. There can be no assurance, moreover, that any of the opinions
expressed herein will be accepted by the Internal Revenue Service, or, if
challenged, by a court.
We have participated in conferences with officers and other
representatives of the Company and the Trust and representatives of the
Underwriters at which the contents of the Registration Statement and the
Prospectus were discussed, and we have consulted with officers and other
employees of the Company and the Trust to inform them of the disclosure
requirements of the Securities Act. We have examined various reports, records,
IV-4
contracts and other documents of the Company and the Trust and orders and
instruments of public officials, which our investigation led us to deem
pertinent. In addition, we attended the due diligence meetings with
representatives of the Company and the Trust and the closing at which the
Company and the Trust satisfied the conditions contained in Section 6 of the
Underwriting Agreement. We have not, however, undertaken to make any independent
review of the other records of the Company and the Trust which our investigation
did not lead us to deem pertinent. As to the statistical statements in the
Registration Statement, 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 two paragraphs in regard to the captions set forth in such two
preceding paragraphs. 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
contains on the date hereof, any untrue statement of a material fact or omitted
or omits on the date hereof, to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
foregoing assurance is provided on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus prior to the date of the Underwriting Agreement.
We are members of the bars of the Commonwealth of Virginia and
the State of New York. 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 and, to the extent set forth herein, the laws of the State of
Delaware. This opinion may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
IV-5
SCHEDULE V
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
CONSOLIDATED NATURAL GAS COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
RE: DOMINION CNG CAPITAL TRUST II
Guaranteed By
CONSOLIDATED NATURAL GAS COMPANY
_________ ___% Trust Preferred Securities
__________, ____
[Underwriter]
for themselves and as Representatives for the Underwriters
named in Schedule I, attached hereto
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
Ladies and Gentlemen:
The arrangements for issuance of ________ ___% Trust Preferred
Securities (liquidation amount $__ per security) (the Trust Preferred
Securities), of Dominion CNG Capital Trust II (the Trust) as guaranteed by
Consolidated Natural Gas Company (the Company), pursuant to an Underwriting
Agreement dated __________, ____, by and among the Trust, the Company and the
Underwriters listed on Schedule I as attached thereto (the Underwriting
Agreement), have been taken under my supervision as Vice President and General
Counsel of
V-1
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 Trust Preferred Securities, 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 Trust Preferred Securities. Accordingly, some of
the matters referred to herein have not been handled personally by me, but I
have been made familiar with the facts and circumstances and the applicable law,
and the opinions herein expressed are my own or are opinions of others in which
I concur.
On this basis I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, and has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement; 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
Company 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 Company Material Adverse
Effect.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Offerors.
4. There are no actions, suits or proceedings pending or, to the best
of my knowledge, threatened, to which the Trust, the Company or one of their
subsidiaries is a party or to which any of the Trust's, the Company's or any of
their 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 each of the Company and the
Trust to
V-2
perform its obligations under the Operative Agreements 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 State of
Delaware and the United States of America. This opinion may not be relied upon
by, nor may copies be delivered to, any person without our prior written
consent. I do not undertake to advise you of any changes in the opinions
expressed herein resulting from matters that may hereinafter arise or that may
hereinafter be brought to my attention.
Yours very truly,
V-3
SCHEDULE VI
PROPOSED FORM OF OPINION
OF
XXXXXXXX, XXXXXX & XXXXXX, P.A.
SPECIAL DELAWARE COUNSEL FOR THE COMPANY
AND DOMINION CNG CAPITAL TRUST II
Xxx Xxxxxx Xxxxxx
P. O. Box 551
Wilmington, DE 19899
RE: DOMINION CNG CAPITAL TRUST II
Guaranteed By
CONSOLIDATED NATURAL GAS COMPANY
_________ ___% Trust Preferred Securities
__________, ____
Consolidated Natural Gas Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
_____________________________
_____________________________
for themselves and as Representatives for the Underwriters
named in Schedule I, attached hereto
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
Ladies and Gentlemen:
We have acted as special Delaware counsel for Consolidated
Natural Gas Company, a Delaware corporation (the "Corporation"), and Dominion
CNG Capital Trust II, a
VI-1
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, (the "Certificate of
Trust"), as filed with the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on March 28, 2002, as amended by the Amended
and Restated Certificate of Trust (together with the Certificate of Trust, the
"Certificate"), as filed with the Secretary of State on __________, ____;
(b) The Trust Agreement, dated as of __________, ____, by and between
Bank One Delaware, Inc., a Delaware corporation (the "Delaware Trustee"), X.
Xxxxx Xxxxxx (the "Trustee") and the Corporation, as amended by Amendment No. 1
to Trust Agreement, dated as of __________, ____, as amended and restated by the
Amended and Restated Trust Agreement, dated as of __________, ____ (collectively
referred to as the "Trust Agreement"), by and among the Corporation, as Sponsor,
Bank One Trust Company, National Association, as Property Trustee, the Delaware
Trustee, the Administrative Trustees of the Trust named therein (the
"Administrative Trustees," together with the Property Trustee and the Delaware
Trustee, the "Trustees"), and the holders from time to time, of undivided
beneficial interests in the assets of the Trust (including Exhibits A and B
thereto);
(c) The Prospectus, dated January 4, 2001, as supplemented by the
Prospectus Supplement dated __________, ____ (collectively, the "Prospectus"),
relating to the ___% Trust Preferred Securities, of the Trust, representing
undivided beneficial interests in the assets of the Trust (each, a "Trust
Preferred Security" and, collectively, the "Trust Preferred Securities");
(d) The Underwriting Agreement, dated __________, ____ (the
"Underwriting Agreement"), by and among the Corporation, the Trust and the
Underwriters listed on Schedule I as attached thereto (the "Underwriters"); and
(e) A Certificate of Good Standing for the Trust, dated __________,
____, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as
defined in the Trust Agreement. The Trust Preferred Securities and the Common
Securities are hereinafter collectively referred to as the "Trust Securities."
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth
VI-2
therein and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material respects.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act and all filings
required under the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been made.
2. Under the Trust Agreement and the Business Trust Act, the Trust
has the trust power and authority to own property and conduct its business, as
described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding agreement of
the Corporation and the Trustees, and is enforceable against the Corporation and
the Trustees, in accordance with its terms.
4. Under the Trust Agreement and the Business Trust Act, the Trust
has the trust power and authority to (A) execute and deliver the Underwriting
Agreement, and to perform its obligations thereunder, (B) issue and perform its
obligations under the Trust Securities, and (C) purchase and hold the
Debentures.
5. Under the Trust Agreement and the Business Trust Act, the
execution and delivery by the Trust of the Underwriting Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
6. The Trust Preferred Securities have been duly authorized by the
Trust Agreement. The Trust Preferred Securities, when duly executed and
authenticated in accordance with the Trust Agreement and delivered against
payment therefor in accordance with the Trust Agreement and the Underwriting
Agreement, will be validly issued and, subject to the qualifications set forth
herein, fully paid and nonassessable undivided preferred beneficial interests in
the assets of the Trust and will entitle the Holders of Trust Preferred
Securities to the benefits of the Trust Agreement. The Holders of Trust
Preferred Securities, as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note that the Holders of Trust Preferred Securities may be
obligated, pursuant to the Trust Agreement, (i) to provide indemnity and
security in connection with and pay taxes or governmental charges arising from
transfers of certificates evidencing the Trust Preferred Securities (the "Trust
Preferred Security Certificates") and the issuance of replacement Trust
Preferred Security Certificates, and (ii) to provide security and indemnity in
connection
VI-3
with requests of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
7. The Common Securities have been duly authorized by the Trust
Agreement and, when duly executed and delivered to the Corporation in accordance
with the Trust Agreement, will be validly issued undivided beneficial interests
in the assets of the Trust and entitled to the benefits of the Trust Agreement.
8. Under the Business Trust Act and the Trust Agreement, the
issuance of the Trust Securities is not subject to preemptive rights.
9. The issuance and sale of the Trust Securities by the Trust, the
purchase by the Trust of the Debentures, the execution, delivery and performance
of the Underwriting Agreement by the Trust, the consummation by the Trust of the
transactions contemplated thereby and the compliance by the Trust with its
obligations thereunder do not violate (A) any provisions of the Certificate or
the Trust Agreement, or (B) any applicable Delaware law.
10. No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency is required to be
obtained by the Trust solely in connection with the issuance and sale of the
Trust Securities or the performance of its obligations under the Underwriting
Agreement or the Trust Agreement.
11. We have reviewed the statements in the Prospectus under the
caption "The Trust" and, insofar as they contain statements of Delaware law,
such statements are fairly presented.
The foregoing opinions are subject to the following exceptions,
qualifications and assumptions:
A. We are admitted to practice law in the State of Delaware and we
do not hold ourselves out as being experts on the law of any other jurisdiction.
This opinion is limited to the laws of the State of Delaware currently in
effect. We express no opinion with respect to (i) federal laws, including
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as amended,
and the Investment Company Act of 1940, as amended, (ii) state securities or
blue sky laws or (iii) laws, rules and regulations relating to the particular
nature of the Trust assets.
B. We have assumed (i) except to the extent provided in paragraph 1
above, the valid existence of each party to the documents examined by us under
the laws of the jurisdiction governing its organization, (ii) the legal capacity
of natural persons who are signatories to the documents examined by us, (iii)
except to the extent provided in paragraphs 2 and 4 above, that each of the
parties to the documents examined by us has the power and authority to execute
and deliver, and to perform its obligations under, such documents, (iv) except
to the extent provided in paragraphs 5, 6 and 7 above, that each of the parties
to the documents examined by us has duly authorized, executed and delivered such
documents,(v) that
VI-4
the Trust Agreement constitutes the entire agreement among the parties thereto
with respect to the subject matter thereof, including, without limitation, the
creation, operation and termination of the Trust, and that the Trust Agreement
and the Certificate are in full force and effect and have not been amended, (vi)
the receipt by each Person to whom a Trust Preferred Security is to be issued by
the Trust (the "Trust Preferred Security Holders") of a certificate in the form
attached as Exhibit A to the Trust Agreement evidencing ownership of such Trust
Preferred Security in the name of such Person and the payment for the Trust
Preferred Security acquired by it, in accordance with the Trust Agreement, and
as described in the Prospectus, (vii) that the Trust Preferred Securities are
issued and sold to the Trust Preferred Security Holders in accordance with the
Trust Agreement, and as described in the Prospectus, (viii) the receipt by the
Person to whom a Common Security is to be issued by the Trust (the "Common
Security Holder") of a certificate in the form attached as Exhibit B to the
Trust Agreement evidencing ownership of such Common Security in the name of such
Person and the payment for the Common Security acquired by it, in accordance
with the Trust Agreement, and as described in the Prospectus, (ix) that the
Common Securities are issued and sold to the Common Security Holder in
accordance with the Trust Agreement, and as described in the Prospectus, and (x)
that the Trust derives no income from or connected with sources within the State
of Delaware and has no assets, activities (other than having a trustee and
filing documents with the Secretary of State) or employees in the State of
Delaware.
C. The opinion expressed in paragraph 3 above regarding
enforceability, is subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent transfer and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
D. We have assumed that all signatures on documents examined by us
are genuine, that all documents submitted to us as originals are authentic, and
that all documents submitted to us as copies conform with the originals, which
facts we have not independently verified.
E. We have not participated in the preparation of the Prospectus and
assume no responsibility for its contents.
F. To the extent that Section 13.2 of the Trust Agreement provides
that the Trust Agreement is governed by laws other than the laws of the State of
Delaware, we express no opinion concerning Section 13.2 of the Trust Agreement
or the effect of Section 13.2 of the Trust Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Underwriting Agreement. We also consent to
XxXxxxxXxxxx LLP relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them on the date hereof pursuant to
the Underwriting Agreement. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other person for any purpose.
VI-5
Very truly yours,
XXXXXXXX, XXXXXX & XXXXXX, P.A.
VI-6
SCHEDULE VII
PROPOSED FORM OF OPINION
OF
XXXXXX XXXXXXXX
COUNSEL TO BANK ONE DELAWARE, INC.
and
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
RE: DOMINION CNG CAPITAL TRUST II
Guaranteed By
CONSOLIDATED NATURAL GAS COMPANY
_________ ___% Trust Preferred Securities
__________, ____
_________________________
_________________________
for themselves and as Representatives for the Underwriters
named in Schedule I, attached hereto
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
Ladies and Gentlemen:
We have acted as special Delaware counsel to Bank One Trust Company,
National Association, a national banking association ("BOTC"), and to Bank One
Delaware, Inc., a Delaware corporation ("BOD," and together with BOTC referred
to herein as the "Trustees"), in connection with (i) the appointment of BOTC and
BOD as Property Trustee and
VII-1
Delaware Trustee, respectively, of Dominion CNG Capital Trust I, a Delaware
statutory business trust, pursuant to a trust agreement, dated as of __________,
____, as amended and restated in its entirety effective as of __________, ____
(as so amended and restated, the "Trust Agreement"), (ii) the appointment of
BOTC as a trustee (the "Guarantee Trustee") under the Guarantee, and (iii) the
appointment of BOTC as an Indenture Trustee under the Indenture. Except as
otherwise defined herein, the capitalized terms used herein shall have the
meanings set forth in the Trust Agreement.
For purposes of this opinion, we have examined the Trust Agreement,
the Guarantee, and the Indenture. Additionally, we have made such examination of
laws, of certificates of public officials, and of certificates of officers of
BOTC and BOD as we have deemed necessary to enable us to render the opinions set
forth herein.
With your permission, and without any further inquiry, we have assumed
that the Trust Agreement, the Guarantee, and the Indenture have been duly
authorized, executed and delivered by each of the parties thereto (other than
the Trustees) and constitute legal, valid and binding obligations enforceable
against the respective parties thereto (other than the Trustees) in accordance
with their terms.
As to material matters of fact relevant to the opinions hereinafter
expressed, with your permission, we have assumed the accuracy and completeness
of, and have relied solely upon, the representations and warranties contained in
the Trust Agreement, the Guarantee, and the Indenture.
We have further assumed (i) the genuineness of all signatures and the
authenticity and completeness of all records, certificates, instruments and
documents (including the Trust Agreement, the Guarantee, and the Indenture)
submitted to us as originals; and (ii) the conformity to authentic originals of
all records, certificates, instruments and documents submitted to us as
certified, conformed, photostatic or facsimile copies thereof.
In expressing opinions based on our knowledge, the phrase "our
knowledge" or words of similar meaning means that, in the course of our
representation of the Company, no information has come to the attention of
partners or associates of this firm who have performed legal services in
connection with the Trust Agreement, the Guarantee and the Indenture that would
give them actual knowledge that any such opinions or other matters are not
accurate or that any of the documents, certificates, reports and information
upon which we have relied are not accurate and complete. Except as otherwise
stated herein, we have undertaken no independent investigation or verification
of such matters.
Based upon the foregoing and subject to the exceptions, qualifications
and limitations herein set forth, we are of the opinion that:
1. BOTC is a national banking association with trust powers, duly
organized, validly existing and in good standing under the laws of the United
States with corporate power and authority to execute and deliver, and to carry
out and fully perform its obligations under the terms of, the Trust Agreement,
the Guarantee, and the Indenture.
VII-2
2. BOD is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full corporate power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Trust Agreement.
3. The execution, delivery and performance by each of BOTC and BOD
of the Trust Agreement have been duly authorized by all necessary corporate
action on the part of BOTC and BOD, respectively. The Trust Agreement has been
duly executed and delivered by BOTC and BOD, respectively, and constitutes the
valid and binding agreement of each of BOTC and BOD, enforceable against each of
BOTC and BOD, in accordance with its terms.
4. The execution, delivery and performance by BOTC of the Guarantee,
in its capacity as the Guarantee Trustee, and of the Indenture, in its capacity
as Debenture Trustee, have been duly authorized by all necessary corporate
action on the part of BOTC. Each of the Guarantee and the Indenture has been
duly executed and delivered by BOTC, in its capacity as the Guarantee Trustee
and Debenture Trustee, respectively, and constitutes the valid and binding
agreement of BOTC, enforceable against BOTC in accordance with their terms.
5. The execution, delivery and performance by each of BOTC and BOD
of the Trust Agreement, and the execution, delivery and performance by BOTC of
the Guarantee and the Indenture, in its capacity as the Guarantee Trustee and
Debenture Trustee, respectively, do not conflict with, or constitute a breach
of, BOTC's or BOD's respective charter or bylaws, or violate any law,
governmental rule or regulation of the State of Delaware or of the United States
of America governing the banking or trust power of BOTC or the corporate powers
of BOD or, to our knowledge, conflict with any judgment or order applicable to
BOTC or BOD.
6. No consent, approval, the withholding of objection on the part
of, or authorization of, or registration, declaration or filing with, or notice
to, or qualification with, or the taking of any other action in respect of, any
Delaware or federal, court, banking authority or other governmental body, is
required for the execution, delivery or performance by each of BOTC and BOD of
the Trust Agreement, or by BOTC of the Guarantee and the Indenture.
7. To our knowledge, there are no proceedings pending or threatened
against BOTC or BOD in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
have a material adverse effect on the right, power and authority of BOTC or BOD
to enter into, or perform its obligations under, the Trust Agreement, the
Guarantee or the Indenture.
The opinions set forth in paragraphs 3 and 4 above are further
limited by (i) public policy considerations; (ii) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, as well as awards by
courts of relief in lieu of the remedy of specific performance of contractual
provisions; and (iii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) as a court
having jurisdiction may impose.
VII-3
We express no opinion herein as to the laws of any jurisdiction except
the laws of the State of Delaware and federal law (excluding any tax laws,
fraudulent conveyance laws, fraudulent transfer laws and securities laws, and
rules, regulations and orders thereunder, and further excluding judicial
decisions to the extent that they deal with any of the foregoing). This opinion
is given as of the date hereof and is based upon present laws and reported court
decisions as they exist and are construed as of the date hereof.
We assume no obligation to update or supplement this opinion to
reflect any facts or circumstances which may hereafter come to our attention, or
any changes in laws which may hereafter occur. This opinion is rendered only to
the addressees set forth above and is solely for the benefit of such addressees.
This opinion may not be quoted to or relied upon by any other person or entity
without the express prior written consent of a partner of this firm.
Very truly yours,
XXXXXX XXXXXXXX
VII-4
