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Exhibit 1.1
DOMINION RESOURCES, INC.
2000 COMMON STOCK
6,000,000 Shares of Common Stock
PURCHASE AGREEMENT
November 21, 2000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Dominion Resources Inc., a Virginia corporation (Dominion), confirms its
agreement with you, with respect to the issue and sale by Dominion and purchase
by you of 6,000,000 shares (the Shares) of its common stock (no par value)
(Common Stock). Capitalized terms used herein without definition shall be used
as defined in the Prospectus (as hereinafter defined).
1. Intentionally omitted.
2. Intentionally omitted.
3. Representations and Warranties of Dominion. Dominion represents and
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warrants to and agrees with you that:
(a) A registration statement, No. 333-35501 on Form S-3 for the
registration of the Shares under the Securities Act of 1933, as amended
(the Securities Act), heretofore filed with the Securities and Exchange
Commission (the Commission), a copy of which as so filed has been delivered
to you, has become effective. The registration statement, including all
exhibits thereto, as amended through the date hereof, is hereinafter
referred to
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as the "Registration Statement"; the prospectus relating to the Shares
included in the Registration Statement, which prospectus is now proposed to
be supplemented by a supplement relating to the Shares to be filed with the
Commission under the Securities Act, as so supplemented, is hereinafter
referred to as the "Prospectus". As used herein, the terms "Registration
Statement", "prospectus" and "Prospectus" include all documents (including
any Current Report on Form 8-K) incorporated therein by reference, and
shall include any documents (including any Current Report on Form 8-K)
filed after the date of such Registration Statement, prospectus or
Prospectus and incorporated therein by reference from the date of filing of
such incorporated documents (collectively, the Incorporated Documents).
(b) No order suspending the effectiveness of the Registration
Statement or otherwise preventing or suspending the use of the Prospectus
has been issued by the Commission and is in effect and no proceedings for
that purpose are pending before or, to the knowledge of Dominion,
threatened by the Commission. The Registration Statement and the Prospectus
comply in all material respects with the provisions of the Securities Act,
the Securities Exchange Act of 1934, as amended (the Securities Exchange
Act) and the rules, regulations and releases of the Commission thereunder
(the Rules and Regulations) and, 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 hereinafter defined), the Registration Statement and
the Prospectus (including any amendments and supplements thereto) will
conform in all respects to the requirements of the Securities Act and the
Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, that the foregoing representations and warranties
in this Section 3(b) shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon information
furnished herein or in writing to Dominion by you for use in the
Registration Statement or Prospectus; and provided, further, that the
foregoing representations and warranties are given on the basis that any
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus or in
any amendment or supplement thereto.
(c) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus (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 Dominion and its subsidiaries
taken as a whole, financial or otherwise (a Material Adverse Effect).
Dominion and its subsidiaries taken as a whole has no material contingent
financial obligation which is not disclosed in the Registration Statement
and the Prospectus.
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(d) Deloitte & Touche LLP, who have certified certain of Dominion's
financial statements filed with the Commission and incorporated by
reference in the Registration Statement, and 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, are independent public accountants as required by
the Securities Act and the rules and regulations of the Commission
thereunder.
(e) Virginia Electric and Power Company, Consolidated Natural Gas
Company, Dominion Transmission, Inc. and Dominion Capital, Inc. are the
only Significant Subsidiaries of Dominion as such term is defined in
Rule 1-02 of Regulation S-X (when such Rule is applied to the pro forma
fiscal year ended December 31, 1999). All of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable, and, with the exception of
the outstanding preferred stock of Virginia Electric and Power Company
which is owned by third parties, the capital stock of each Significant
Subsidiary is owned by Dominion, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, claim, encumbrance
or equitable right.
(f) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and in the
Registration Statement (including the issuance and sale of the Shares and
the use of the proceeds from the sale of the Shares as described in the
Prospectus under the caption "Use Of Proceeds") and compliance by Dominion
with its obligations under this Agreement, 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 Dominion 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 Dominion 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 Dominion or any subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have
a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or bylaws of Dominion 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 Dominion or any subsidiary or any of
their respective properties, assets or operations, and Dominion has full
power and authority to authorize, issue and sell the Shares as contemplated
by this Agreement.
(g) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(h) The Common Stock (other than the Shares) is and, upon issuance
the Shares will be, listed on the New York Stock Exchange.
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(i) Dominion is not, and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" or a company
"controlled" by an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended.
4. Offering. On the basis of the representations and warranties herein
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contained, but subject to the terms and conditions in this Agreement set forth,
Dominion agrees to sell to you, and you agree to purchase from Dominion, at the
price, place and time hereinafter specified, the total number of the Shares set
forth in Schedule I hereto.
Dominion shall not be obligated to deliver any of the Shares to be
delivered on the Closing Date except upon payment for all the Shares to be
purchased on such Closing Date as provided herein.
5. Time and Place of Closing. Delivery of the Shares to, and payment
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therefor by, you shall be made at the time, place and date specified in Schedule
I or such other time, place and date as you and Dominion may agree upon in
writing. The hour and date of such delivery and payment are herein called the
"Closing Date". On the Closing Date, Dominion, through the facilities of The
Depository Trust Company (DTC), shall deliver or cause to be delivered a
securities entitlement with respect to the Shares to you against payment of the
purchase price by wire transfer of same-day funds to a bank account designated
by Dominion. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of your obligations
hereunder. Upon delivery, the Shares shall be registered in the name of Cede &
Co., as nominee for DTC. A specimen of the certificate representing the Shares
will be made available at the location specified on Schedule I for examination
by you not later than 12:00 noon, Richmond time, on the last business day prior
to the Closing Date.
6. Covenants of Dominion. Dominion agrees that:
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(a) Dominion, at or prior to the Closing Date, will deliver to you
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 you.
(b) Dominion will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and Prospectus
and of this Agreement, (ii) the preparation, issuance, listing and delivery
of the Shares, and (iii) the printing and delivery to you in reasonable
quantities of copies of the Registration Statement and the Prospectus (each
as originally filed and as subsequently amended). Dominion also will pay
all taxes, if
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any, on the issuance of the Shares. In addition, Dominion will pay the
reasonable out of pocket expenses and disbursements of your outside
counsel, Mays & Valentine, L.L.P., in connection with the qualification of
the Shares under state securities or blue sky laws or investment laws (if
and to the extent such qualification is required by you or Dominion).
(c) If, during the time when a prospectus relating to the Shares is
required to be delivered under the Act, but not later than 30 days after
the Closing Date, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, Dominion promptly will (i) notify you to
suspend solicitation of purchases of the Shares 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, Dominion 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 until
Dominion shall have filed its Report on Form 10-K for the fiscal year
ending December 31, 2000, Dominion shall not file such documents or
amendments without also furnishing copies thereof to you and Mays &
Valentine, L.L.P.
(d) Dominion will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will afford you
a reasonable opportunity to comment on any such proposed amendment or
supplement; and Dominion will also advise you 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) Dominion will make generally available to its security holders,
as soon as it is practicable to do so, an earnings statement of Dominion
(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) Dominion will furnish such information as may be lawfully
required and otherwise cooperate in qualifying the Shares for offer and
sale under the securities or blue sky laws of such states as you may
designate; provided, however, that Dominion shall not be required in any
state to qualify as a foreign corporation, or to file a general consent to
service of process, or to submit to any requirements which it deems unduly
burdensome.
(g) Fees and disbursements of Mays & Valentine, L.L.P. who are acting
as counsel for you (exclusive of fees and disbursements of such counsel
which are to be paid as set forth in Section 6(b)), shall be paid by you;
provided, however, that if this Agreement is terminated in accordance with
the provisions of Section 7 hereof, Dominion shall reimburse you for the
amount of such fees and disbursements.
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(h) Dominion shall not, and it shall prior to closing obtain from its
executive officers (as such term is defined in Rule 3b-7 promulgated under
the Securities Exchange Act) (the Executive Officers) and its directors
their agreement not to (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock,
or file any Registration Statement under the Securities Act with respect to
any of the foregoing (other than a shelf registration statement from which
no such securities are offered) or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Shares, any
such securities convertible into or exercisable or exchangeable for Common
Stock, whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Shares or such other securities, in
cash or otherwise, for a period of 90 days from the date hereof without
your prior written consent, other than (A) pursuant to this Agreement; (B)
Dominion's Treasury PIES or Corporate PIES to be created or recreated upon
substitution of pledged securities or shares of Common Stock issuable upon
early settlement of Dominion's Corporate PIES or Treasury PIES; (C) any
shares of Common Stock issued by Dominion upon exercise of an option,
warrant, or the conversion of a security outstanding on the date hereof;
(D) any shares of Common Stock issued, or options to purchase such shares
granted, pursuant to any employee benefit plans, employee stock purchase
plans, non-employee director stock plans, dividend reinvestment plans and
the Dominion Direct Investment plan; (E) the sale or surrender to Dominion
by any of its Executive Officers or directors of any options or Common
Stock underlying options in order to pay the exercise price or taxes
associated with the exercise of options; (F) any issuance by Dominion of
Common Stock in connection with acquisitions that close more than 90 days
after the date hereof or any acquisition in which the party or parties
receiving the Common Stock agree to be bound by the restrictions of this
Section 6(h); (G) transactions by any person other than Dominion relating
to Common Stock or other securities acquired in open market transactions
after the completion of the offering of the Shares; (H) transfers by any
person, other than Dominion, by gift, will or intestacy, or to affiliates
or immediate family members, provided that the transferee agrees to be
bound by the restrictions of this Section 6(h); (I) the filing by Dominion
of a shelf registration statement from which Dominion will not offer any
securities for a 90-day period after its filing date.
(i) To use its best efforts to list the Shares to be issued and sold
pursuant to this Agreement on the New York Stock Exchange, Inc., subject
only to official notice of issuance and evidence of satisfactory
distribution.
7. Conditions of Your Obligations; Termination by the You.
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(a) Your obligations to purchase and pay for the Shares on the
Closing Date shall be subject to the following conditions on such Closing
Date:
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(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 Dominion
threatened by, the Commission on such date. You shall have received, prior
to payment for the Shares, a certificate dated the Closing Date and signed
by the President or any Vice President of Dominion 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 Dominion, threatened by the
Commission.
(ii) At the Closing Date an order or orders of the Commission
pursuant to the Public Utility Holding Company Act of 1935, as amended,
permitting the issuance and sale of the Shares shall be in full force and
effect and all provisions of such order or orders heretofore entered are
deemed acceptable to you and Dominion, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to you and Dominion
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) At the Closing Date you shall receive the opinions of Mays &
Valentine, L.L.P., your counsel, McGuireWoods LLP, counsel to the Company,
and the Company's General Counsel, substantially in the forms attached
hereto as Schedules II, III, and IV respectively.
(iv) You shall have received from Deloitte & Touche LLP, on the date
of this Agreement and on the Closing Date, with respect to Dominion, and
from PricewaterhouseCoopers LLP, on the date of this Agreement, with
respect to Consolidated Natural Gas Company for periods ending not later
than December 31, 1999, a letter addressed to you, dated the date of this
Agreement and the Closing Date with respect to Deloitte & Touche LLP, and
dated the date of this Agreement with respect to PricewaterhouseCoopers
LLP, containing statements and information of the type ordinarily included
in accountants' SAS 72 "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in or
incorporated by reference into the Prospectus, including the pro-forma
financial information.
(v) Subsequent to the execution of this Agreement and prior to the
Closing Date, (A) except as reflected in, or contemplated by, the
Registration Statement and the Prospectus (exclusive of amendments or
supplements after the date hereof), and except for sales of Dominion's
Common Stock as contemplated Section 6(h) above, there shall not have
occurred (1) any change in the Common Stock or long term debt of Dominion
(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 Dominion and its subsidiaries taken as a
whole or (3) any material transaction entered into by Dominion or a
Significant Subsidiary other than a transaction in the ordinary course of
business, the effect of which in each such case in your reasonable judgment
is so material and so
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adverse that it makes it impracticable to proceed with the public offering
or delivery of the Shares 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 Dominion's senior unsecured notes, or
securities that are pari passu to Dominion's senior unsecured notes, by any
"nationally recognized statistical rating organization" (as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act) and no such organization shall have given any notice of any
intended or potential downgrading or of any review for a possible change
with possible negative implications in its ratings of such securities, (2)
any general suspension of trading in securities on the New York Stock
Exchange or any limitation on prices for such trading or any restrictions
on the distribution of securities established by the New York Stock
Exchange or by the Commission or by any federal or state agency or by the
decision of any court, (3) a suspension of trading of any securities of
Dominion on the New York Stock Exchange, (4) a banking moratorium declared
either by federal or New York State authorities or (5) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or crisis resulting in the declaration
of a national emergency, or if there has occurred any material adverse
change in the financial markets, the effect of which outbreak, escalation,
declaration, calamity, crisis or material adverse change, in your
reasonable judgment, makes it impracticable to proceed with the public
offering or delivery of the Shares 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
Dominion in this Agreement shall be true and correct as if made on and as
of such date, and Dominion shall have performed all obligations and
satisfied all conditions required of it under this Agreement; and, at the
Closing Date, you shall have received a certificate to such effect signed
by the President or any Vice President of Dominion.
(vii) All legal proceedings to be taken in connection with the
issuance and sale of the Shares shall have been satisfactory in form and
substance to Mays & Valentine, L.L.P.
(b) In case any of the conditions specified above in Section 7(a) shall
not have been fulfilled, this Agreement may be terminated by you upon mailing or
delivering written notice thereof to Dominion. Any such termination shall be
without liability of either party to the other party except as otherwise
provided in Section 9 and Sections 6(b), 6(g) and 7(c) hereof.
(c) If this Agreement shall be terminated by you pursuant to Section 7(b)
above or because of any failure or refusal on the part of Dominion to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason Dominion shall be unable to perform its obligations under this
Agreement, then in any such case, Dominion will reimburse you for all out-of-
pocket expenses (in addition to the fees and disbursements of your outside
counsel as provided in Section 6(g)) reasonably incurred by you in connection
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with this Agreement or the offering contemplated hereunder and, upon such
reimbursement, Dominion shall be absolved from any further liability
hereunder, except as provided in Section 6(b) and Section 9.
8. Conditions of the Obligation of Dominion. The obligation of Dominion
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to deliver the Shares shall be subject to the conditions set forth in the first
sentence of Section 7(a)(i) and in Section 7(a)(ii). In case said conditions
shall not have been fulfilled, this Agreement may be terminated by Dominion by
mailing or delivering written notice thereof to you. Any such termination shall
be without liability of either party to the other party except as otherwise
provided in Sections 6(b), 6(g), and 9 hereof.
9. Indemnification and Contribution. (a) Dominion agrees to indemnify
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and hold you, and each person who controls you within the meaning of Section 15
of the Securities Act or Section 20(a) of the Securities Exchange Act, harmless
against any and all losses, claims, damages or liabilities, joint or several, to
which you or any of such persons may become subject under the Securities Act,
the Securities Exchange Act, or any other statute or common law and to reimburse
you and each such 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 effective date of the Registration Statement), or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided
that the foregoing agreement, insofar as it relates to any Preliminary
Prospectus, shall not inure to your benefit (or to the benefit of any person who
controls you) on account of any losses, claims, damages or liabilities arising
out of your sale of any of the Shares 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 Dominion shall have made any supplements or
amendments which have been furnished to you), shall not have been sent or given
by you or on your behalf 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 Dominion satisfied its obligations pursuant to Section 6(a)
hereof, if the misstatement or omission leading to such loss, claim, damage or
liability was corrected in the Prospectus (excluding any documents incorporated
by reference) as amended or supplemented, and such correction would have cured
the defect giving rise to such loss, claim, damage, or liability; and provided
further, however, that the indemnity agreement contained in this Section 9(a)
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of or based upon any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon information furnished herein or otherwise in
writing to Dominion by you or on your behalf 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 Dominion contained
in this Section 9(a) and the representations and warranties of Dominion
contained in Section 3 hereof shall remain operative and in full force and
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effect, regardless of any investigation made by you or on your behalf or any
such controlling person, and shall survive the delivery of the Shares.
(b) You agree to indemnify and hold harmless Dominion, its officers and
directors, and each person who controls any of the foregoing within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Securities Exchange Act, or any other statute or common law and to
reimburse each of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by them in
connection with investigating or defending any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus, or in either such document as
amended or supplemented (if any amendments or supplements thereto shall have
been furnished), or any Preliminary Prospectus (if and when used prior to the
effective date of the Registration Statement), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished herein or in writing to
Dominion by you or on your behalf for use in the Registration Statement or the
Prospectus or any amendment or supplement to either thereof, or any Preliminary
Prospectus. Your indemnity agreement contained in this Section 9(b) shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of Dominion or any such controlling person, and shall survive the
delivery of the Shares.
(c) Dominion and you agree that, upon the receipt of notice of the
commencement of any action against Dominion or any of its officers or directors,
or any person controlling Dominion, or against you or any person controlling you
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
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in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to one local counsel), representing
the indemnified parties under Section 9(a) or 9(b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall have elected not to
assume the defense of such action, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
the action, or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
Notwithstanding the foregoing sentence, an indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
(such consent not to be unreasonably withheld), but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such a proceeding), unless such settlement (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.
(d) If the indemnification provided for in this Section 9(a) or 9(b)
is unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of Dominion, on the
one hand, and of you, 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 Dominion 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. Dominion and you agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
Section 9(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
10. Intentionally omitted.
11
<PAGE>
11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of Dominion submitted pursuant hereto
shall remain operative and in full force and effect regardless of any
investigation made by you or on your behalf or any of your controlling persons,
or by or on behalf of Dominion, and shall survive delivery of the Shares.
12. Miscellaneous. The validity and interpretation of this Agreement
-------------
shall be governed by the laws of the State of New York. This Agreement shall
inure to the benefit of Dominion, you and, with respect to the provisions of
Section 9 hereof, each controlling person and each officer and director of
Dominion referred to in Section 9, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such, of any of the Shares from you.
13. Notices. All communications hereunder shall be in writing and if
-------
to you shall be mailed, telecopied or delivered to you at the address set forth
on Schedule I hereto, or if to Dominion shall be mailed, telecopied or delivered
to it, attention of Treasurer, Dominion Resources, Inc., 120 Tredegar Street,
Richmond, Virginia 23219 (facsimile number: (804) 819-2211).
12
<PAGE>
Please sign and return to us a counterpart of this letter, whereupon
this letter will become a binding agreement between Dominion and you in
accordance with its terms.
DOMINION RESOURCES, INC.
By: /s/ G. Scott Hetzer
Name: G. Scott Hetzer
Title: Senior Vice President and Treasurer
13
<PAGE>
The foregoing agreement is
hereby confirmed and accepted,
as of the date first above
written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Robert D. Craig
Authorized Signatory
Name: Robert D. Craig
Title: Director
14
<PAGE>
SCHEDULE I
Total Number of Shares Being Offered: 6,000,000 Shares
Purchase Price per Share: $59.07
Total Purchase Price: $354,420,000
Time of Delivery: November 27, 2000, 10:00 A.M.
Closing Location: One James Center
901 East Cary Street
Richmond, VA 23219
The specimen of the Shares will be available for your inspection at:
One James Center
901 East Cary Street
Richmond, VA 23219
Address for Notices:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
Attention: Robert D. Craig
World Financial Center
North Tower
New York, New York 10281
telecopier number: (212) 449-8636
with a copy of any notice pursuant to Section 9(c) also sent to:
Mays & Valentine, L.L.P.
1111 East Main Street
Richmond, Virginia 23219
facsimile number: (804) 697-1339
I-1
<PAGE>
SCHEDULE II
PROPOSED FORM OF OPINION
OF
MAYS & VALENTINE, L.L.P.
Bank of America Center
1111 East Main Street
Richmond, Virginia 23219
Re: DOMINION RESOURCES, INC.
2000 Common Stock Offering
November __, 2000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
We have acted as counsel for you in connection with the purchase today
by you severally of _______ shares (the "Shares") of the common stock (no par
value) of Dominion Resources, Inc., a Virginia corporation ("Dominion"),
pursuant to the terms of a purchase agreement dated ____________, 200__ (the
"Purchase Agreement") between Dominion and you. This letter is being delivered
to you pursuant to the provisions of Section 7(a)(iii) of the Purchase
Agreement. Terms used in this letter which are not defined herein but which are
defined, either directly or by cross-reference, in the Purchase Agreement are
used herein with the respective meanings assigned to such terms in the Purchase
Agreement.
We have examined originals, or copies certified to our satisfaction of
such corporate records of Dominion, indentures, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of Dominion, 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 Dominion and other
appropriate persons and statements contained in the Registration Statement
hereinafter mentioned. All legal proceedings
II-1
<PAGE>
taken as of the date hereof in connection with the transactions contemplated by
the Purchase Agreement have been satisfactory to us.
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, One James Center, Richmond, Virginia, at which Dominion
satisfied the conditions contained in Section 7 of the Purchase 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. Dominion is a corporation duly incorporated and existing as a
corporation in good standing under the laws of Virginia, and has the
corporate power to transact its business as described in the Prospectus.
2. The Purchase Agreement has been duly authorized by all necessary
corporate action and has been duly executed and delivered by Dominion.
3. The Shares have been duly authorized and are validly issued,
fully paid and non-assessable; and the issuance of such Shares is not
subject to any preemptive or similar rights.
4. The Registration Statement (Reg. No. 333-35501) with respect to
the Shares 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 Shares in the manner therein specified.
5. The Registration Statement and the Prospectus (except the
financial statements incorporated by reference therein, as to which we
express no opinion) appear on their face to be appropriately responsive in
all material respects to the requirements of the Securities Act, and to the
applicable rules and regulations of the Commission thereunder.
6. As to the statements relating to the Shares under DESCRIPTION OF
CAPITAL STOCK--"Common Stock" in the prospectus initially filed as part of
the Registration Statement, as supplemented and amended by the statements
under the DESCRIPTION OF COMMON STOCK in the Prospectus Supplement dated
November , 2000 (the "Prospectus Supplement"), we are of the opinion that
the statements are accurate and do not omit any material fact required to
be stated therein or necessary to make such statements not misleading. As
to the statistical statements in the Registration Statement (which includes
the Incorporated Documents), we have relied solely on the officers of
Dominion. As to the other matters, 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 regard to the above captions. We note
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<PAGE>
that we were not involved in the preparation of the Registration Statement
or the prospectus initially filed as part thereof, and that the
Incorporated Documents were prepared and filed by Dominion without our
participation. We have, however, participated in conferences with counsel
for and representatives of Dominion in connection with the preparation of
the Prospectus Supplement, and we have reviewed the Incorporated Documents
and such of the corporate records of Dominion as we deemed advisable. None
of the foregoing disclosed to us any information that gives us reason to
believe that the Registration Statement (except the financial statements
incorporated by reference therein, as to which we express no opinion)
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 now contains, any untrue statement of a
material fact or omitted on said date or now omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The foregoing opinion is given on the basis that any
statement contained in an Incorporated Document shall be deemed not to be
contained in the Registration Statement or Prospectus if the statement has
been modified or superseded by any statement in a subsequently filed
Incorporated Document or in the Registration Statement or Prospectus.
9. An appropriate order of the Securities and Exchange Commission
(the Commission) with respect to the sale of the Shares 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 Shares as contemplated by the Purchase
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 Shares as contemplated
by the Purchase 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 Shares in such states) and the carrying
out of the provisions of the Purchase Agreement.
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Very truly yours,
MAYS & VALENTINE, L.L.P.
II-3
<PAGE>
SCHEDULE III
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219
Re: DOMINION RESOURCES, INC.
2000 Common Stock Offering
November __, 2000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
We have acted as counsel to Dominion Resources, Inc., a Virginia
corporation ("Dominion"), in connection with the issuance and sale by Dominion
of ____ shares (the "Shares") of its common stock (no par value) pursuant to a
purchase agreement dated ____________, 200__ (the "Purchase Agreement") between
Dominion and you. This opinion is rendered pursuant to the provisions of
Section 7(a)(iii) of the Purchase Agreement, and, except a set forth herein, the
terms used herein which are defined in the Purchase Agreement have the same
meanings as they have in the Purchase Agreement.
We have examined originals, or copies certified to our satisfaction,
of such corporate records of Dominion, indentures, agreements, and other
instruments, certificates of public officials, certificates of officers and
representatives of Dominion, 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
Dominion and other appropriate persons and statements contained in the
Registration Statement hereinafter
III-1
<PAGE>
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Purchase Agreement have been satisfactory
to us.
On this basis we are of the opinion that:
1. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than those required under the
Public Utility Holding Company Act of 1935, the Securities Act and the Rules and
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states) is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreement or the due execution, delivery or performance of the by Dominion or
for the offering, issuance, sale or delivery of the Shares. An appropriate
order of the Securities and Exchange Commission (the Commission) with respect to
the sale of the Shares 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 Shares as
contemplated by the Purchase Agreement.
2. The Shares have been duly authorized and are validly issued,
fully paid and non-assessable; and the issuance of such Shares is not subject to
any preemptive or similar rights.
3. The Registration Statement (Reg. No. 333-35501) with respect to
the Shares 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 Shares in the manner therein specified.
4. The Registration Statement and the Prospectus (except the
financial statements incorporated by reference therein, as to which we express
no opinion) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act, and to the applicable rules
and regulations of the Commission thereunder.
5. As to the statements relating to the Shares under DESCRIPTION OF
CAPITAL STOCK--"Common Stock" in the prospectus initially filed as part of the
Registration Statement, as supplemented and amended by the statements under the
DESCRIPTION OF COMMON STOCK in the Prospectus Supplement dated November , 2000
(the "Prospectus Supplement"), we are of the opinion that the statements are
accurate and do not omit any material fact required to be stated therein or
necessary to make such statements not misleading.
6. We have participated in conferences with officers and other
representatives of Dominion and your representatives at which the contents of
the Registration Statement and the Prospectus were discussed and we have
consulted with officers and other employees of Dominion to inform them of the
disclosure requirements of the Securities Act. We have examined various
reports, records, contracts and other documents of Dominion 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 Dominion and the closing at
III-2
<PAGE>
which Dominion satisfied the conditions contained in Section 7 of the Purchase
Agreement. We have not, however, undertaken to make any independent review of
the other records of Dominion 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 Dominion. We accordingly assume no
responsibility for the accuracy or completeness of the statements made in the
Registration Statement, except as stated above in regard to the captions in the
opinion in the preceding paragraph. But such conferences, consultation,
examination and attendance disclosed to us no information with respect to such
other matters that gives us reason to believe that the Registration Statement
contained on the date the Registration Statement became effective, or the
Prospectus contained on the date it was issued, or that the Registration
Statement or the Prospectus contains now, any untrue statement of a material
fact or omitted on said date or omits now to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. We
are of the opinion that the Registration Statement (excepting the financial
statements incorporated therein by reference, as to which we express no opinion)
complies as to form in all material respects with all legal requirements. The
foregoing opinion is given on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus.
We do not purport to express an opinion on any laws other than those
of the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered
to, any person without our prior written consent.
Yours very truly,
MCGUIREWOODS LLP
III-3
<PAGE>
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
DOMINION RESOURCES, INC.
120 Tredegar Street
Richmond, VA 23219
Re: DOMINION RESOURCES, INC.
Re: DOMINION RESOURCES, INC.
2000 Common Stock Offering
November __, 2000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
The arrangements for issuance of up to ___,000,000 shares of Common
Stock (the Shares), of Dominion Resources, Inc. (Dominion), pursuant to an
Purchase Agreement dated November ___, 2000, by and between Dominion and you
(the Purchase Agreement), have been taken under my supervision as Vice President
and General Counsel of Dominion. Terms not otherwise defined herein have the
meanings set forth in the Purchase Agreement.
As Vice President and General Counsel of Dominion, I have general
responsibility over the attorneys within Dominion's Legal Department responsible
for rendering legal counsel to Dominion regarding corporate, financial,
securities, and other matters. I am generally familiar with the organization,
business and affairs of Dominion. I am also familiar with the proceedings taken
and proposed to be taken by Dominion in connection with the offering and sale of
the Shares, 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
IV-1
<PAGE>
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 Shares. 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. Dominion has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Virginia, and has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Purchase Agreement; and Dominion is duly qualified as a
foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect.
2. Each Significant Subsidiary of Dominion has been duly
incorporated and is validly existing as a corporation in good standing under the
respective laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or to be in good standing would not result in a Material Adverse Effect.
3. The Purchase Agreement has been duly authorized, executed and
delivered by Dominion.
4. There are no actions, suits or proceedings pending or, to the
best of my knowledge, threatened, to which Dominion or one of its subsidiaries
is a party or to which any of Dominion's or any of its subsidiaries' properties
is subject other than any proceedings described in the Prospectus and
proceedings which I believe are not likely to have a material adverse effect on
the power or ability of Dominion to perform its obligations under the Purchase
Agreement or to consummate the transactions contemplated thereby or by the
Prospectus.
I am a member of the Bar of the Commonwealth of Virginia and I do not
purport to express an opinion on any laws other than those of the Commonwealth
of Virginia and the United States of America. This opinion may not be relied
upon by, nor may copies be delivered to, any person without our prior written
consent. I do not undertake to advise you of any changes in the opinions
expressed herein resulting from matters that may hereinafter arise or that may
hereinafter be brought to my attention.
Yours very truly,
IV-2
