EXHIBIT 4.10
CAPITAL SECURITIES EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT
CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of
December 8, 1997, by and among Dominion Resources Capital Trust I, a Delaware
business trust (the "Trust"), Dominion Resources, Inc., a Virginia corporation
("Dominion Resources"), and Xxxxxx Xxxxxxx & Co. Incorporated, X.X. Xxxxxx
Securities Inc., Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (collectively, the "Purchasers") relating to the Securities of the
Trust.
1. CERTAIN DEFINITIONS. For purposes of this Capital Securities Exchange
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and Registration Rights Agreement, the following terms shall have the following
respective meanings:
(a) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "Debenture Exchange and Registration Rights Agreement" means the
Debenture Exchange and Registration Rights Agreement in respect of the
Debentures dated as of December 8, 1997 among Dominion Resources, the Trust and
the Purchasers.
(c) "Debentures" means the 7.83% Junior Subordinated Deferrable
Interest Debentures due December 1, 2027 of Dominion Resources, to be issued
pursuant to the Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "Exchange Debentures" has the meaning set forth in Section 2(a)
hereof.
(g) "Exchange Guarantee" has the meaning set forth in Section 2(a)
hereof.
(h) "Exchange Offer" has the meaning set forth in Section 2(a) hereof.
(i) "Exchange Registration" has the meaning set forth in Section 3(c)
hereof.
(j) "Exchange Securities" has the meaning set forth in Section 2(a)
hereof.
(k) "Guarantee" means the Guarantee of Dominion Resources with respect
to the Securities, to the extent set forth in the Guarantee Agreement.
(l) "Guarantee Agreement" means the Capital Securities Guarantee
Agreement dated as of December 8, 1997 between Dominion Resources and The Chase
Manhattan Bank, as Guarantee Trustee (together with its successors and assigns,
"Guarantee Trustee"), for the benefit of the holders of the Securities.
(m) "Guarantee Exchange and Registration Rights Agreement" means the
Guarantee Exchange and Registration Rights Agreement in respect of the Guarantee
dated as of December 8, 1997 among Dominion Resources, the Trust and the
Purchasers.
(n) The term "holder" means each of the Purchasers for so long as it
owns any Registrable Securities, and its respective successors and assigns who
acquire Registrable Securities from time to time, directly or indirectly, from
such person or from any successor or assign of such person, in each case for so
long as such person owns any Registrable Securities.
(o) "Indemnified Person" has the meaning set forth in Section 5(a)
hereof.
(p) "Indenture" means the Indenture dated as of December 1, 1997,
between Dominion Resources and The Chase Manhattan Bank, as Debenture Trustee,
as supplemented by the First Supplemental Indenture dated as of December 1,
1997, and as further amended or supplemented from time to time.
(q) "Issue Date" means December 8, 1997.
(r) "Liquidation Amount" means the stated liquidation preference of
the Securities.
(s) "Material Event" means the happening of any event or the failure
of any event to occur or the discovery of any facts or otherwise (each a
"Material Event"), during the period that a shelf registration statement must be
kept effective as set forth in Section 2(b) which makes any statement made in
such shelf registration statement or the related
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prospectus untrue in any material respect or which causes such shelf
registration statement or prospectus to omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(t) "New Guarantee Agreement" has the meaning set forth in the
Guarantee Exchange and Registration Rights Agreement.
(u) The term "person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
(v) "Purchase Agreement" means the Purchase Agreement dated December
3, 1997, among Dominion Resources, the Trust and the Purchasers.
(w) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when
(i) the Exchange Offer is completed as contemplated in Section
2(a); provided that, prior to the consummation of the Exchange Offer,
existing Commission interpretations have not been changed such that the
Exchange Securities received by holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt, transferable
by each such holder (other than a Restricted Holder) without restriction
under the Securities Act in the circumstances contemplated by Section 2(a);
and provided further, that any Exchange Security received by a broker-
dealer in an Exchange Offer exchange for a Registrable Security (other than
a Registrable Security that was acquired by the broker-dealer directly from
the Trust for resale pursuant to Rule 144A or another available exemption
under the Securities Act) will also be a Registrable Security through and
including the earlier of the 90th day after the Exchange Offer is completed
or such time as such broker-dealer no longer owns such Security; and
provided further, however, that any such Securities that, pursuant to the
last two sentences of Section 2(a) hereof, are included in a prospectus for
use in connection with resales by broker-dealers shall be deemed to be
Registrable Securities with respect to Sections 5 and 8 until resale of
such Exchange Securities has been effected within the 90-day period
referred to in Section 2(a) hereof;
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(ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities (and, in the
circumstances contemplated by Section 2(b), other than a registration
statement filed in addition to the Exchange Offer, also registering the
underlying Debentures and the related Guarantee) under the Securities Act
has been declared or becomes effective and such Securities have been sold
or otherwise transferred by the holder thereof pursuant to such effective
registration statement;
(iii) such Securities are sold pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Trust or pursuant to the Trust Agreement or such Securities
are eligible to be sold pursuant to paragraph (k) of Rule 144; or
(iv) such Securities shall cease to be outstanding.
(x) "Registration Default" has the meaning set forth in Section 2(c)
hereof.
(y) "Registration Expenses" has the meaning set forth in Section 4
hereof.
(z) "Restricted Holder" means (i) a holder that is an "affiliate" of
the Trust or of Dominion Resources within the meaning of Rule 405 under the
Securities Act, (ii) a holder who acquires Exchange Securities outside the
ordinary course of such holder's business, (iii) a holder who has arrangements
or understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities or (iv) a broker-dealer who receives
Securities for its own account but did not acquire the Securities as a result of
market-making activities or other trading activities.
(aa) "Resale Period" has the meaning set forth in Section 2(a) hereof.
(bb) "Rule 144" has the meaning set forth in the Trust Agreement.
(cc) "Securities" means, collectively, the $250,000,000 aggregate
Liquidation Amount of the 7.83% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold
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to the Purchasers, and any securities issued in exchange therefor or in lieu
thereof pursuant to the Trust Agreement or the Exchange Offer.
(dd) "Securities Act" means the Securities Act of 1933, or any
successor thereto, as amended from time to time.
(ee) "Shelf Registration" has the meaning set forth in Section 2(b)
hereof.
(ff) "Special Distributions" has the meaning set forth in Section 2(c)
hereof.
(gg) "Special Interest" has the meaning set forth in Section 2(c)
hereof.
(hh) "Trust Agreement" means the Amended and Restated Trust Agreement
dated as of December 8, 1997 among Dominion Resources, as Depositor, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust.
(ii) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, as amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Capital
Securities Exchange and Registration Rights Agreement, and the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this Capital
Securities Exchange and Registration Rights Agreement as a whole and not to any
particular Section or other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
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(a) Except as set forth in Section 2(b) below and to the extent not
prohibited by any applicable law or applicable interpretation of the staff of
the Commission, Dominion Resources and the Trust agree, jointly and severally,
to use their reasonable best efforts to file under the Securities Act, as soon
as practicable, but no later than 150 days after the Issue Date, a registration
statement relating to an offer to exchange (the "Exchange Offer") any and all of
the Securities for a like aggregate Liquidation Amount of capital securities of
the Trust which are substantially identical to the Securities (and which are
entitled to the benefits of the Trust Agreement which will be qualified under
the Trust Indenture Act) except that they have been registered pursuant to an
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effective registration statement under the Securities Act and such new capital
securities will not contain provisions for Special Distributions or provisions
restricting transfer in the absence of registration under the Securities Act
(such new capital securities hereinafter called "Exchange Securities") for any
or all of the Registrable Securities. Such registration statement shall also
relate to, and the consummation of the Exchange Offer shall be conditioned upon
the consummation of, an offer to exchange the Debentures for substantially
identical debentures of Dominion Resources pursuant to the Debenture Exchange
and Registration Rights Agreement (the "Exchange Debentures") and to an offer to
exchange the Guarantee for a substantially identical guarantee of Dominion
Resources pursuant to the Guarantee Exchange and Registration Rights Agreement
(the "Exchange Guarantee"). Dominion Resources and the Trust agree, jointly and
severally, to use their reasonable best efforts to cause such registration
statement to become effective under the Securities Act within 180 days of the
Issue Date. The Exchange Offer will be registered under the Securities Act on
the appropriate form and will comply in all material respects with all
applicable tender offer rules and regulations under the Exchange Act. Dominion
Resources and the Trust further agree, jointly and severally, to commence the
Exchange Offer promptly after such registration statement has become effective
and to hold the Exchange Offer open for at least 30 calendar days (or such
longer period as may be required by applicable law) after the date notice of the
Exchange Offer is mailed to holders, and the Trust agrees to issue Exchange
Securities for all Registrable Securities that have been validly tendered and
not withdrawn on or prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been completed only if the Exchange Securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such holder
without restriction under the Securities Act and the Exchange Act, it being
understood that broker-dealers receiving Exchange Securities will be subject to
certain prospectus delivery requirements with respect to resale of the Exchange
Securities. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Trust having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Trust having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Registrable Securities that have been validly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is at
least 30 days (or such longer period as required by applicable law) following
the commencement of the Exchange Offer. Dominion Resources and the Trust agree,
jointly and severally, (x) to include in the registration statement a prospectus
for use in connection with any resales of Exchange Securities by a broker-
dealer, other than resales of Exchange Securities received by a broker-dealer
pursuant to the Exchange Offer in exchange for Registrable Securities acquired
by the broker-dealer directly from
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the Trust, and (y) to the extent any broker-dealer participates in the Exchange
Offer and notifies Dominion Resources or causes Dominion Resources to be
notified in writing that it is a participating broker-dealer, to use their
reasonable efforts to keep such registration statement effective for a period
(the "Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 90th day
after the Exchange Offer has been completed or such shorter period if all
Exchange Securities received by such broker-dealer in exchange for Registrable
Securities acquired for its own account as a result of market-making or other
trading activities have been disposed of by such broker-dealer; and no broker-
dealers shall be authorized by Dominion Resources to, and shall not, deliver
such prospectus after such period in connection with resales contemplated by
this Section 2(a) or otherwise; it being understood that, notwithstanding
anything in this Capital Securities Exchange and Registration Rights Agreement
to the contrary, Dominion Resources shall not be required to comply with any
provision of this Section 2(a) or any other provision of this Capital Securities
Exchange and Registration Rights Agreement relating to the distribution of
Exchange Securities by broker-dealers, to the extent that Dominion Resources
reasonably concludes that compliance with such provision is no longer required
by applicable law or interpretation of the Staff of the Commission. With respect
to such registration statement, each broker-dealer that holds Exchange
Securities received in the Exchange Offer in exchange for Registrable Securities
not acquired by it directly from the Trust shall have the benefit of the rights
of indemnification and contribution set forth in Section 5 hereof.
(b) If (i) on or prior to the consummation of the Exchange Offer
existing Commission interpretations are changed such that the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
(ii) the Exchange Offer has not been declared effective within 180 days
following the Issue Date or (iii) the Purchasers so request (but only with
respect to the Securities) within 30 days after the consummation of the Exchange
Offer with respect to any Securities held by them which are not freely
transferable following consummation of the Exchange Offer, in lieu of (or, in
the case of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), Dominion Resources and the Trust shall file under
the Securities Act, as soon as practicable, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities (or, in the case of clause
(iii), of the Securities held by the Purchasers for resale by the Purchasers),
pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Commission (the "Shelf
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Registration"). Unless the Shelf Registration has been filed in addition to
conducting the Exchange Offer contemplated by Section 2(a), the Shelf
Registration shall also provide for the registration of the Debentures pursuant
to the Debenture Exchange and Registration Rights Agreement and for the
registration of the Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement. Dominion Resources and the Trust agree, jointly
and severally, to use their reasonable best efforts to cause the Shelf
Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the second anniversary of the Issue Date (or, in the case of clause (iii) above,
the first anniversary) or (B) such time as there are no longer any Registrable
Securities outstanding. Dominion Resources and the Trust further agree, jointly
and severally, to supplement or make amendments to the Shelf Registration, as
and when required by the rules, regulations or instructions applicable to the
registration form used by Dominion Resources and the Trust for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and Dominion Resources and the Trust agree, jointly and
severally, to furnish to the holders of the Registrable Securities copies of any
such supplement or amendment prior to its being used and/or filed with the
Commission.
(c) In the event that (i) Dominion Resources and the Trust have not
filed the registration statement relating to the Exchange Offer on or before the
150th day after the Issue Date, or (ii) such registration statement has not
become effective or been declared effective by the Commission or, if applicable,
a Shelf Registration has not been filed on or before the 180th day after the
Issue Date, or (iii) any of the Exchange Offer, the exchange offer contemplated
by the Guarantee Exchange and Registration Rights Agreement and the exchange
offer contemplated by the Debenture Exchange and Registration Rights Agreement
has not been completed or, if applicable, the Shelf Registration is not declared
effective within 210 days after the Issue Date or (iv) any registration
statement required by Section 2(b) is filed and declared effective but shall
thereafter cease to be effective at any time prior to the second anniversary of
the Issue Date (other than after such time as all Securities have been disposed
of thereunder or otherwise cease to be Registrable Securities within the meaning
of this Agreement), (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then interest will accrue (in addition to the stated
interest rate on the Debentures) at the rate of 0.25% per annum on the principal
amount of the Debentures (the "Special Interest"), and the distributions will
accumulate (in addition to the stated distribution rate on the Securities) at
the rate of 0.25% per annum on the Liquidation Amount of the Securities (the
"Special Distributions") commencing on (w) the 151st day after the Issue Date in
the case of (i) above, (x) the 181st day after the Issue Date in the case of
(ii) above, (y) the 211th day after
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the Issue Date in the case of (iii) above, or (z) on the day after such shelf
registration statement ceases to be effective in the case of (iv) above;
provided, that if, in the case of (iv) above, such shelf registration statement
ceases to be effective as a result of a Material Event, neither Special
Distributions nor Special Interest shall accumulate or accrue so long as such
shelf registration statement again becomes effective within 60 days of the date
notice of such Material Event was received by the holders of the Securities, the
Guarantee and the Debentures; and provided further, that if such shelf
registration statement does not again become effective within such 60-day
period, Special Interest shall accrue and Special Distributions shall accumulate
commencing on the 61st day after such shelf registration statement ceases to be
effective.
Notwithstanding the foregoing, neither the additional interest rate on the
Debentures nor the additional distributions rate on the liquidation amount of
the Securities may exceed 0.25% per annum; provided that (1) upon the filing of
the registration statement (in the case of (i) above), (2) upon the
effectiveness of the registration statement or the filing of a shelf
registration statement (in the case of (ii) above), or (3) upon the completion
of the exchange of the Securities, the Guarantee and the Debentures or upon the
effectiveness of the shelf registration statement (in the case of (iii) above),
(4) upon the effectiveness of the shelf registration statement which had ceased
to remain effective (in the case of (iv) above), (5) at the time when the
Securities can be sold by non-affiliates pursuant to Rule 144 under the
Securities Act without any limitation under clauses (c), (e), (f) and (h) of
Rule 144, (6) at the second anniversary of the date the Securities are issued,
or (7) the date as of which all securities are sold pursuant to the shelf
registration statement, additional interest on the Debentures, and additional
distributions on the liquidation amount of the Securities as a result of such
clause, as the case may be, shall cease to accrue or accumulate, as the case may
be. Such Additional Interest and such Additional Distributions will be payable
in cash semi-annually in arrears on each June 1 and December 1 in accordance
with, and subject to the deferral provisions of, the Indenture and the Trust
Agreement, respectively. Special Interest, if any, and Special Distributions, if
any, will be computed on the basis of a 365 or 366 day year, as the case may be,
and the number of days actually elapsed.
(d) Any reference herein to a registration statement shall be deemed
to include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
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3. REGISTRATION PROCEDURES. If Dominion Resources and the Trust file a
-----------------------
registration statement pursuant to Section 2(a) or Section 2(b), the following
provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, Dominion Resources shall qualify the
Indenture, the New Guarantee Agreement or Guarantee Agreement (as applicable)
and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under any of the Indenture, the New Guarantee
Agreement, the Guarantee Agreement or the Trust Agreement, such new trustee
shall be appointed thereunder pursuant to the applicable provisions thereof.
(c) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the registration of the Exchange
Securities, the Exchange Guarantee and the Exchange Debentures, as contemplated
by Section 2(a) (the "Exchange Registration"), if applicable, Dominion Resources
and the Trust shall, as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Issue Date, a registration
statement with respect to the Exchange Registration on any form which may
be utilized by Dominion Resources and the Trust and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a) hereof,
and use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such registration statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such registration statement, and promptly provide
each broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission promulgated
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thereunder, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing, (A) when such registration statement or
the prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has become effective, (B) of the receipt of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening by the Commission
of any proceedings for that purpose, (D) of the receipt by either Dominion
Resources or the Trust of any notification with respect to the suspension
of the qualification of the Exchange Securities and the Exchange Guarantee
for sale in any United States jurisdiction or the initiation or, to
Dominion Resources' or the Trust's knowledge, threatening of any proceeding
for such purpose, or (E) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act, that such
registration statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Dominion Resources and the Trust would be
required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-
dealers holding Exchange Securities, without delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder and shall not contain an
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untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(v) their reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or
qualify the Exchange Securities and the Exchange Guarantee under the
securities laws or blue sky laws of such jurisdictions as are contemplated
by Section 2(a) no later than the commencement of the Exchange Offer, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale Period and (C)
take any and all other actions as may be reasonably necessary or advisable
to enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that neither
Dominion Resources nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of Dominion Resources, make any changes to
its Articles of Incorporation or Bylaws or any agreement between it and its
stockholders or in the case of the Trust, make any changes to the Trust
Agreement;
(vii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(viii) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Dominion Resources and its subsidiaries
complying with Section 11 (a) of the Securities Act (including, at the
option of Dominion Resources, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Dominion
Resources and the Trust with respect to the Shelf Registration, if applicable,
Dominion Resources and the Trust shall use their reasonable best efforts to
cause the Shelf Registration to become
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effective to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration. In connection therewith, Dominion
Resources and the Trust shall as soon as reasonably possible (or as otherwise
specified):
(i) prepare and file with the Commission, as soon as
practicable, a registration statement with respect to the Shelf
Registration on any form which may be utilized by Dominion Resources and
the Trust and which shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods thereof, as
specified in writing to Dominion Resources and the Trust by the holders of
the Registrable Securities and use their reasonable best efforts to cause
such registration statement to become effective as soon as practicable
thereafter;
(ii) as soon as practicable, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such registration statement and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act applicable
to Dominion Resources or the Trust in connection with the disposition of
all of the Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders thereof,
set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters (which
term, for purposes of this Capital Securities Exchange and Registration
Rights Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any, thereof, (C)
the sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement,
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each prospectus included therein or filed with the Commission,
and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of
such registration statement, and throughout the period specified
in Section 2(b), make available at reasonable times at Dominion
Resources' principal place of business or such other reasonable
place for inspection by the persons referred to in Section
3(d)(iv) who shall certify to Dominion Resources and the Trust
that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and
other information and books and records of Dominion Resources and
the Trust, and cause the officers, employees, counsel and
independent certified public accountants of Dominion Resources
and the Trust to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that each such party shall be required to
maintain in confidence and not to disclose to any other person
any information or records reasonably designated by Dominion
Resources as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue
of its inclusion in such registration statement or otherwise,
except by disclosure by such party in breach of this Agreement),
or (B) such person shall be required so to disclose such
information pursuant to the subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to, and only to the extent required by, the
requirements of such order, and only after such person shall have
given Dominion Resources prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and
the managing underwriter or underwriters, if any, thereof and
confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has become
effective, (B) of any comments by the Commission and by the Blue
Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments
or supplements to such registration statement or prospectus or
for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such
registration
14
statement or the initiation or threatening by the Commission of
any proceedings for that purpose, (D) if at any time the joint
and several representations and warranties of Dominion Resources
and the Trust contemplated by Section 3(d)(xv)(A) cease to be
true and correct in all material respects, (E) of the receipt by
either Dominion Resources or the Trust of any notification with
respect to the suspension of the qualification of the Registrable
Securities and the Guarantee for sale in any jurisdiction or, to
Dominion Resources' or the Trust's knowledge, the initiation or
threatening of any proceeding for such purpose, or (F) at any
time when a prospectus is required to be delivered under the
Securities Act, that such registration statement, prospectus,
prospectus amendment or supplement or post-effective amendment,
or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vii) use their best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder or
counsel for the holders of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies
should be included therein relating to the terms of the sale of
such Registrable Securities, including, without limitation,
information with respect to the Liquidation Amount or the
principal amount, as the case may be, of Registrable Securities
being sold by any holder or agent or to any underwriters, the
name and description of such holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities, to be sold by such holder or agent or to such
underwriters; and make
15
all required filings of such prospectus supplement or post-
effective amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities,
each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred
to in Section 3(d)(iv) a conformed copy of such registration
statement, each such amendment and supplement thereto and such
number of copies of such registration statement and of the
prospectus included in such registration statement, in conformity
with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder, and such other documents, as such holder,
agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the
Registrable Securities owned by such holder, offered or sold by
such agent or underwritten by such underwriter and to permit such
holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Dominion
Resources and the Trust hereby consents to the use of such
prospectus and any amendment or supplement thereto by each such
holder and by any such agent and underwriter, in each case in the
form most recently provided to such party by Dominion Resources
and the Trust, in connection with the offering and sale of the
Registrable Securities covered by the prospectus or any
supplement or amendment thereto;
(x) use their reasonable best efforts to (A) register
or qualify the Registrable Securities to be included in such
registration statement and the Guarantee under such securities
laws or blue sky laws of such jurisdictions as any holder of such
Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain effective
under Section 2(b) above, and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each such
holder, agent, if any, and underwriter, if any, to consummate the
disposition in such jurisdictions of Registrable Securities;
provided, however, that neither Dominion Resources nor the Trust
shall be required for any such purpose to (1) qualify to do
business
16
in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(x), (2)
consent to general service of process in any such jurisdiction,
(3) in the case of Dominion Resources, make any changes to its
Articles of Incorporation or Bylaws or any agreement between it
and its shareholders or, in the case of the Trust, make any
changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable
Securities and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall be
printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request
at least two business days prior to any sale of the Registrable
Securities;
(xiii) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xiv) enter into any underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including
(without limitation) provisions relating to indemnification and
contribution substantially the same as those set forth in Section
5 hereof, and take such other actions in connection therewith as
reasonably requested in order to expedite or facilitate the
disposition of such Registrable Securities; provided, that
Dominion Resources and the Trust shall not be required to (i)
enter into any such agreement more than once with respect to all
of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public
offering which Dominion Resources and the Trust shall have then
undertaken or (ii) enter into any engagement letter, agency
agreement, "best effort" underwriting agreement or
17
similar agreement whatsoever with respect to the Registrable
Securities, and provided further, that Dominion Resources and the
Trust shall not be obligated to enter into any such agreement
with a broker-dealer which results in the need for a "qualified
independent underwriter" (within the meaning of the Rules of Fair
Practice and the Bylaws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from
time to time (the "Rules and Bylaws of NASD");
(xv) whether or not an agreement of the type referred
to in Section (3)(d)(xiv) hereof is entered into and whether or
not any portion of the offering contemplated by such registration
statement is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the holders of such Registrable
Securities and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof as are customarily made with
respect to the offering of debt securities pursuant to any
appropriate agreement or to a registration statement on the
applicable form under the Securities Act; (B) obtain an opinion
or opinions of counsel to Dominion Resources and the Trust (which
may be in the form of a reliance letter) covering matters as are
customarily covered in opinions for an underwritten offering,
addressed to such holder or holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof (it
being agreed that the matters to be covered by such opinions may
be subject to customary qualifications and exceptions) and dated
the effective date of such registration statement (and if such
registration statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto); (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of Dominion Resources and the Trust
addressed to the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor and the underwriters,
if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such
registration statement; and (D) undertake such obligations
relating to expense reimbursement, indemnification and
contribution as are provided in Section 5 hereof;
(xvi) notify in writing each holder of Registrable
Securities of any proposal by Dominion Resources and the Trust
18
to amend or waive any provision of this Capital Securities
Exchange and Registration Rights Agreement pursuant to Section
8(g) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules and Bylaws of NASD) thereof,
whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and Bylaws,
including, without limitation, by (A) if such Rules or Bylaws,
including Schedule E thereto (or any successor thereto), shall so
require, engaging a "qualified independent underwriter" (as
defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement
relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section
5 hereof (or to such other customary extent as may be required by
such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules and Bylaws of NASD;
and
(xviii) comply with all applicable rules and
regulations of the Commission, and make generally available to
its holders of the Securities as soon as practicable but in any
event not later than eighteen months after the effective date of
such registration statement, an earnings statement of Dominion
Resources and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Dominion
Resources, Rule 158 thereunder).
(e) In the event that Dominion Resources and the Trust would be
required, pursuant to Section 3(d)(vi)(F) above, to notify the selling holders
of Registrable Securities, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, Dominion
19
Resources and the Trust shall without delay prepare and furnish to each such
holder, to each placement or sales agent, if any, and to each underwriter, if
any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission promulgated thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each broker-dealer holding Exchange
Securities and each holder of Registrable Securities agrees that upon receipt of
any notice from Dominion Resources and the Trust pursuant to Section
3(c)(iii)(E) or 3(d)(vi)(F) hereof, as the case may be, such holder shall
forthwith discontinue the disposition of Exchange Securities or Registrable
Securities, as the case may be, pursuant to the registration statement
applicable to such Exchange Securities or Registrable Securities, as the case
may be, until such holder shall have received copies of such amended or
supplemented prospectus, and if so directed by Dominion Resources and the Trust,
such holder shall deliver to Dominion Resources (at Dominion Resources' expense)
all copies, other than permanent file copies, then in such holder's possession
of the prospectus covering such Exchange Securities or Registrable Securities,
as the case may be, at the time of receipt of such notice.
(f) Dominion Resources and the Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to Dominion Resources and the Trust such information regarding such
holder and such holder's intended method of distribution of such Registrable
Securities as Dominion Resources and the Trust may from time to time reasonably
request in writing. Each such holder agrees to notify Dominion Resources and
the Trust as promptly as practicable of any inaccuracy or change in information
previously furnished by such holder to Dominion Resources and the Trust or of
the occurrence of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to Dominion Resources and the Trust any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall not contain, with respect to such
holder or the distribution of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact required
20
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing. Each such holder shall comply with
the provisions of the Securities Act applicable to such holder with respect to
the disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(g) Until the expiration two years after the Issue Date, Dominion
Resources will not, and will not permit any of its "affiliates" (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired by
any of them except pursuant to an effective registration statement under the
Securities Act or any exemption therefrom; provided, however, that, for purposes
of this paragraph, "affiliates" shall not include the Purchasers or any of their
affiliates other than Dominion Resources and its subsidiaries, officers,
managers and directors.
(h) Dominion Resources and the Trust may require each holder of
Registrable Securities as to which a registration statement is being effected
pursuant to Section 2(a), as a condition to such holder's eligibility to
exchange the Registrable Securities for the Exchange Securities, that such
holder furnish to Dominion Resources and the Trust (or an agent thereof) in
writing information as to the number of "beneficial owners" (within the meaning
of Rule 13d-3 under the Exchange Act) on behalf of whom such holder holds the
Registrable Securities that such holder desires to exchange for the Exchange
Securities.
4. REGISTRATION EXPENSES.
---------------------
If Dominion Resources and the Trust file a registration statement pursuant
to Section 2(a) or Section 2(b), the following provisions shall apply: Dominion
Resources agrees to bear and to pay or cause to be paid promptly upon request
being made therefor all expenses incident to the performance by Dominion
Resources and the Trust for compliance with this Capital Securities Exchange and
Registration Rights Agreement, including, without limitation, (a) all Commission
and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Securities and the
Guarantee for offering and sale under the state securities and blue sky laws
referred to in Section 3(d)(x) hereof, including reasonable fees and
disbursements of counsel in connection with such qualifications, (c) all
expenses relating to the preparation, printing and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, and the certificates representing the Securities
and
21
all documents relating hereto, (d) messenger and delivery expenses, (e) fees and
expenses of the Debenture Trustee under the Indenture, the Issuer Trustees under
the Trust Agreement and the Guarantee Trustee under the Guarantee Agreement and
of any escrow agent or custodian, (f) internal expenses (including, without
limitation, all salaries and expenses of Dominion Resources' officers and
employees performing legal or accounting duties), (g) fees, disbursements and
expenses of counsel and independent certified public accountants of Dominion
Resources and the Trust (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) reasonable fees, disbursements and reasonable expenses (other than counsel
fees) of any "qualified independent underwriter" engaged pursuant to Section
3(d)(xvii) hereof, (i) reasonable fees, disbursements and reasonable expenses of
one counsel for the holders of Registrable Securities retained in connection
with a Shelf Registration, as selected by the holders of at least a majority in
aggregate Liquidation Amount, or the aggregate principal amount, as the case may
be, of the Registrable Securities being registered, and reasonable fees,
reasonable expenses and disbursements of any other persons, including special
experts, retained by Dominion Resources or the Trust in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof,
Dominion Resources shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on resale of any of the Securities by such holders and any
advertising or solicitation expenses other than expenses specifically referred
to above incurred by or on behalf of such holders in connection with any offers
they may make.
5. INDEMNIFICATION.
---------------
(a) Upon the registration of the Registrable Securities pursuant to
Section 2 hereof, and in consideration of the agreements of the Purchasers
contained herein, and as an inducement to the Purchasers to purchase the
Securities, the Trust and Dominion Resources, jointly and severally, agree to
indemnify and hold harmless each of the holders of Registrable Securities to be
included in such registration, and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such Registrable
Securities and
22
each person, if any, who controls such holder, or such placement or sales agent,
if any, or such underwriter, if any, within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact
contained in any registration statement under which such
Registrable Securities were registered under the Securities Act,
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading or caused by any untrue
statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus (or any
amendment or supplement thereto) contained in such registration
statement or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
omission that was made in reliance upon and in conformity with
written information relating to such Indemnified Person furnished
to the Trust and Dominion Resources by, or on behalf of, such
Indemnified Person expressly for use in such registration
statement or such preliminary, final or summary prospectus (or
any amendment or supplement thereto);
(ii) against any and all losses, claims, damages and
liabilities whatsoever to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or
on behalf of, such Indemnified Person as aforesaid), if such
settlement is effected with the written consent of the Trust and
Dominion Resources; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by such Indemnified
Person), reasonably incurred in investigating, preparing or
defending against any litigation,
23
or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in
conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as
aforesaid) to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that indemnification with respect to any prospectus
shall not inure to the benefit of any holder of Registrable Securities or
Exchange Securities from whom the Person asserting any loss, claim, damage,
liability or expense purchased such Securities, if a copy of the prospectus
(as then amended or supplemented and furnished by Dominion Resources to
such holder) was not sent or given by or on behalf of such holder to such
person if such is required by law at or prior to the sale of such
Registrable Securities or Exchange Securities, as the case may be, and if
the prospectus (as so amended and supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense.
(b) Dominion Resources may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2
hereof and to entering into any placement or underwriting agreement with respect
thereto, that Dominion Resources shall have received an undertaking reasonably
satisfactory to them from the holder of such Registrable Securities and from
each placement agent or underwriter named in any such placement agreement or
underwriting agreement, severally and not jointly, to indemnify and hold
harmless the Trust and Dominion Resources and each person, if any, who controls
the Trust or Dominion Resources within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
claim, damage, liability and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any registration
statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or Dominion Resources to any such holder,
agent or underwriter (or any amendment or supplement thereto), in reliance upon
and in conformity with written information relating to such holder, or such
placement or sales agent, if any, or such underwriter, if any, furnished to the
Trust and Dominion Resources by or on behalf of such holder, or such placement
or sales agent, if any, or such underwriter, if any, expressly for use in such
registration statement or such
24
preliminary, final or summary prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party,
each such holder, placement or sales agent or such underwriter, as the case may
be, shall be entitled to separate counsel (in addition to any local counsel) in
each such jurisdiction to the extent such holder, placement or sales agent or
such underwriter, as the case may be, may have interests conflicting with those
of the other holder, placement or sales agent or such underwriter, as the case
may be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, Dominion Resources, the Trust,
and such holders, such placement or sales agents, if any, or such underwriters,
if any, shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
Dominion Resources, the Trust, and such holders, such placement or sales agents,
if any, or such underwriters, if any, as incurred; provided that 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 that was
not guilty of such fraudulent misrepresentation. As between Dominion Resources,
the Trust, and such holders, such placement or sales agents, if any, or such
underwriters, if any, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such
25
proportion as shall be appropriate to reflect the relative fault of Dominion
Resources and the Trust, on the one hand, and such holders, such placement or
sales agents, if any, or such underwriters, if any, on the other hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of Dominion Resources and
the Trust, on the one hand, and of such holders, such placement or sales agents,
if any, or such underwriters, if any, on the other hand, 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
relates to information supplied by Dominion Resources or the Trust, on the one
hand, or by or on behalf of such holders, such placement or sales agents, if
any, or such underwriters, if any, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Dominion Resources, the Trust and such holders, such
placement or sales agents, if any, or such underwriters, if any, agree that it
would not be just and equitable if contribution pursuant to this Section 5 were
to be determined by pro rata allocation or by any other method of allocation
that does not take into account the relevant equitable considerations. For
purposes of this Section 5, each person, if any, who controls any such holders,
such placement or sales agents, if any, and such underwriters, if any, within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such holders, such placement
or sales agents, if any, and such underwriters, if any, and each person, if any,
who controls the Trust or Dominion Resources within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as the Trust or Dominion Resources.
6. UNDERWRITTEN OFFERINGS.
----------------------
(a) Selection of Underwriters. If any of the Registrable Securities
-------------------------
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate Liquidation Amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Trust and Dominion Resources.
(b) Participation by Holders. Each holder of Registrable Securities
------------------------
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons
26
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
7. RULE 144 AND RULE 144A. For so long as Dominion Resources or the
----------------------
Trust is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act and any Registrable Securities remain outstanding, Dominion
Resources and the Trust, as the case may be, will use their reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the Commission thereunder, that if it ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales of their securities pursuant to Rule 144 under the Securities Act,
(b) deliver such information to a prospective purchaser as is necessary to
permit sales of their securities pursuant to Rule 144A under the Securities Act
and it will take such further action as any Holder of Registrable Securities may
reasonably request, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such rule may be amended from time to time, (ii)
Rule 144A under the Securities Act, as such rule may be amended from time to
time, or (iii) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, Dominion
Resources and the Trust will deliver to such Holder a written statement as to
whether it has complied with such requirements.
8. MISCELLANEOUS.
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(a) No Inconsistent Agreements. Each of the Trust and Dominion
--------------------------
Resources represents, warrants, covenants and agrees that it has not granted,
and shall not grant, registration rights with respect to Registrable Securities
which would be inconsistent with the terms contained in this Capital Securities
Exchange and Registration Rights Agreement and that the Debenture Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) Notices. All notices, requests, claims, demands, waivers and
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other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested)
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as follows: if to the Trust or to Dominion Resources, then to Dominion
Resources, Inc., 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Treasurer, and if to a holder, to the address of such holder set forth in the
security register or other records of the Trust, or to such other address as any
party may have furnished to the others in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this Capital
-------------------
Securities Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any transferee
of any holder of Registrable Securities shall become a holder of Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Capital Securities
Exchange and Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the benefits
of and be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Capital Securities Exchange and Registration
Rights Agreement. If Dominion Resources shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
(d) Survival. The respective indemnities, agreements,
--------
representations, warranties and each other provision set forth in this Capital
Securities Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer. In addition, the respective indemnities,
representations and warranties set forth herein shall survive the termination
hereof.
(e) LAW GOVERNING. THIS CAPITAL SECURITIES EXCHANGE AND REGISTRATION
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RIGHTS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
--------
paragraphs of this Capital Securities Exchange and
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Registration Rights Agreement are inserted for convenience only, do not
constitute a part of this Capital Securities Exchange and Registration Rights
Agreement and shall not affect in any way the meaning or interpretation of this
Capital Securities Exchange and Registration Rights Agreement.
(g) Entire Agreement; Amendments. This Capital Securities Exchange and
----------------------------
Registration Rights Agreement and the other agreements referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Capital
Securities Exchange and Registration Rights Agreement and such other agreements
referred to herein supersede all prior agreements and understandings between the
parties with respect to its subject matter. This Capital Securities Exchange and
Registration Rights Agreement may be amended and the observance of any term of
this Capital Securities Exchange and Registration Rights Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Dominion Resources,
the Trust and the holders of at least a majority in aggregate principal amount
of the Registrable Securities at the time outstanding. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment or waiver effected pursuant to this Section 8(g), whether or not
any notice, writing or marking indicating such amendment or waiver appears on
such Registrable Securities or is delivered to such holder.
(h) Inspection. For so long as this Capital Securities Exchange and
----------
Registration Rights Agreement shall be in effect, this Capital Securities
Exchange and Registration Rights Agreement and a complete list of the names and
addresses of all the registered holders of Registrable Securities shall be made
available for inspection and copying on any business day, during normal business
hours, by any holder of Registrable Securities at the offices of Dominion
Resources at the address thereof set forth in Section 8(b) above.
(i) Counterparts. This agreement may be executed by the parties in
------------
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(j) Termination. Except for the respective indemnities,
-----------
representations and warranties set forth herein, this Capital Securities
Exchange and Registration Rights Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
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This Capital Securities Exchange and Registration Rights Agreement is
hereby executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Executive Vice President
DOMINION RESOURCES CAPITAL TRUST I
/s/ G. Xxxxx Xxxxxx
--------------------------------
as Administrative Trustee
XXXXXX XXXXXXX & CO. INCORPORATED
As Representative of the Purchasers
named in Schedule I to the Purchase
Agreement
By: /s/ Xxxxxx X. Xxxxxxxxxx III
------------------------------
(Xxxxxx Xxxxxxx & Co. Incorporated)
Acting severally, and not jointly and
severally, on behalf of themselves
and each of the Purchasers named in
Schedule I to the Purchase Agreement
30
