Exhibit 1
DOMINION RESOURCES, INC.
6,000,000 EQUITY INCOME SECURITIES
CONSISTING OF 6,000,000 CORPORATE UNITS
PURCHASE AGREEMENT
March 13, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 Equity Income Securities (the Firm Equity Income
Securities). In addition, Dominion proposes to grant you an option to purchase
up to an additional 600,000 Equity Income Securities on the terms and for the
purposes set forth in Section 4 (the Option Equity Income Securities). The Firm
Equity Income Securities and the Option Equity Income Securities, if purchased,
are hereinafter collectively called the "Equity Income Securities." This
agreement shall be referred to herein as the "Purchase Agreement". Capitalized
terms used herein without definition shall be used as defined in the Prospectus
(as hereinafter defined).
1. Intentionally omitted.
2. Description of the Equity Income Securities. Each Equity Income
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Security will initially consist of a unit (a Corporate Unit) comprised of (a) a
stock purchase contract (a Purchase Contract, and collectively the Purchase
Contracts), to be issued under a Purchase Contract Agreement (the Purchase
Contract Agreement) between Dominion and JPMorgan Chase Bank, as the Purchase
Contract Agent (the Purchase Contract Agent), under which (i) the holder will
purchase from Dominion no later than May 15, 2006, for a price of $50, a number
of shares of common stock, without par value, of Dominion (the Common Stock),
equal to the Settlement Rate as set forth in the Purchase Contract Agreement and
(ii) Dominion will pay to the holder contract adjustment payments and (b) a 2002
Series A 5.75 % Senior Note, due May 15, 2008 of Dominion, in the principal
amount of $50 (a Senior Note, and collectively, the Senior Notes). The holders
of the Equity Income Securities will pledge the Senior Notes to Bank One Trust
Company, N.A., as Collateral Agent (the Collateral Agent), pursuant to a Pledge
Agreement, to be entered into among Dominion, the Purchase Contract Agent, the
Securities Intermediary and the Collateral Agent (the Pledge Agreement), to
secure the holders' obligations to purchase Common Stock under the
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Purchase Contracts. Under certain circumstances, holders of Corporate Units may
substitute certain U.S. Treasury securities for the Senior Notes that are part
of such holders' Corporate Units and thereby create Treasury Units (the Treasury
Units) pursuant to the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Senior Notes will be issued under Dominion's Senior Indenture dated as
of June 1, 2000, between Dominion and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as Trustee (the Trustee), as supplemented, and as further
supplemented by a Tenth Supplemental Indenture dated as of March 1, 2002
(collectively, the Indenture).
3. Representations and Warranties of Dominion. Dominion represents and
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warrants to you and agrees with you that:
(a) A registration statement, No. 333-55904 on Form S-3 for the
registration of the Equity Income Securities 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 as the "Registration Statement"; the prospectus
relating to the stock purchase units and other securities included in the
Registration Statement, which prospectus is now proposed to be supplemented
by a prospectus supplement relating to the Equity Income Securities to be
filed with the Commission under the Securities Act, as completed and as so
supplemented, is hereinafter referred to as the "Prospectus". As used
herein, the terms "Registration Statement" and "Prospectus" include all
documents (including any Current Report on Form 8-K) incorporated therein
by reference, and shall include any documents (including any Current Report
on Form 8-K) filed after the date of such Registration Statement,
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), the Trust Indenture Act of 1939, as amended (the Trust Indenture
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 defined below), the Registration Statement and the
Prospectus (including any amendments and supplements
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thereto) will conform in all respects to the requirements of the Securities
Act, the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, that the foregoing
representations and warranties in this Section 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 or on your behalf for use in the Registration Statement
or Prospectus or the part of the Registration Statement which constitutes
the Trustee's Statement of Eligibility under the Trust Indenture Act; and
provided, further, that the foregoing representations and warranties are
given on the basis that any statement contained in an Incorporated Document
shall be deemed not to be contained in the Registration Statement or
Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the
Registration Statement or Prospectus or in any amendment or supplement
thereto.
(c) Except as reflected in, or contemplated by, the Registration
Statement and Prospectus (exclusive of any amendments or supplements after
the date hereof), since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus
(exclusive of any amendments or supplements after the date hereof), there
has not been any material adverse change or event which would result in a
material adverse effect on the condition of the Company and its
subsidiaries taken as a whole, financial or otherwise (a Material Adverse
Effect). Dominion and its subsidiaries taken as a whole have no material
contingent financial obligation which is not disclosed in the Registration
Statement and the Prospectus.
(d) Deloitte & Touche LLP, who have certified certain of Dominion's
financial statements filed with the Commission and incorporated by
reference in the Registration Statement, are independent public accountants
as required by the Securities Act and the Rules and Regulations.
(e) Consolidated Natural Gas Company, Dominion Exploration &
Production, Inc., Dominion Energy, Inc., Dominion Nuclear Connecticut,
Inc., Dominion Nuclear, Inc., Dominion Nuclear Marketing II, Inc., Dominion
Transmission, Inc, The East Ohio Gas Company and Virginia Electric and
Power Company are the only Significant Subsidiaries of Dominion as such
term is defined in Rule 1-02 of Regulation S-X. All of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable, and, with
the exception of the outstanding preferred stock of Virginia Electric and
Power Company which is owned by third parties, the capital stock of each
Significant Subsidiary is owned by Dominion, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, claim, encumbrance or equitable right.
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(f) The execution, delivery and performance of this Purchase
Agreement, the Indenture, the Corporate Units, the Purchase Contract
Agreement, the Senior Notes, the Pledge Agreement, and the Remarketing
Agreement, and the consummation of the transactions contemplated in this
Purchase Agreement, the Indenture, the Corporate Units, the Purchase
Contract Agreement, the Senior Notes, the Pledge Agreement, and the
Remarketing Agreement, and in the Registration Statement (including the
issuance and sale of the Equity Income Securities and the use of the
proceeds from the sale of the Equity Income Securities as described in the
Prospectus under the caption USE OF PROCEEDS) and compliance by Dominion
with its obligations under this Purchase Agreement, the Indenture, the
Corporate Units, the Purchase Contract Agreement, the Senior Notes, the
Pledge Agreement and the Remarketing 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
Corporate Units, the Senior Notes and the Common Stock as contemplated by
this Purchase Agreement.
(g) The Corporate Units have been duly authorized by Dominion, and
when duly executed by Dominion (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by Dominion
and upon payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations
of Dominion entitled to the benefits of the Purchase Contract Agreement and
enforceable against Dominion in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(h) The unissued shares of Common Stock to be issued and sold by
Dominion pursuant to the Purchase Contracts have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, will be duly and
validly issued, fully paid and non-assessable, and the issuance of such
shares will not be subject to any preemptive or similar rights.
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(i) Dominion is not, and, after giving effect to the offering and
sale of the Equity Income Securities 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 Purchase Agreement
set forth, Dominion agrees to sell to you, and you agree to purchase from
Dominion, at the price, place and time specified, the total number of the Firm
Equity Income Securities set forth in Schedule I hereto. In addition, Dominion
hereby grants to you an option to purchase up to 600,000 Option Equity Income
Securities. Such option is granted solely for the purpose of covering
over-allotments in the sale of the Firm Equity Income Securities and is
exercisable as provided herein. The price of both the Firm Equity Income
Securities and the Option Equity Income Securities shall be $50 per Equity
Income Security.
Dominion shall not be obligated to deliver any of the Equity Income
Securities to be delivered on the First Closing Date (as hereinafter defined) or
the Second Closing Date (as hereinafter defined), as the case may be, except
upon payment for all the Equity Income Securities to be purchased on such
Closing Date as provided herein.
5. Time and Place of Closing. Delivery of the Equity Income Securities
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to, and payment 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 "First Closing Date", or the "Closing Date" as the context
implies. On the First 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 Firm Equity Income Securities 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 Purchase Agreement is a further
condition of your obligation hereunder. Upon delivery, the Firm Equity Income
Securities shall be registered in the name of Cede & Co., as nominee for DTC.
At any time on or before the thirtieth day after the date of this Purchase
Agreement, the option granted in Section 4 may be exercised by your written
notice being given to Dominion. Such notice shall set forth the aggregate number
of Option Equity Income Securities as to which the option is being exercised,
the denominations in which the Option Equity Income Securities are to be issued
and the date and time, as determined by you, when the Option Equity Income
Securities are to be delivered; provided, however, that this date and time shall
not be earlier than the First Closing Date nor earlier than the second business
day after the date on which the option shall have been exercised nor later than
the fifth business day after the date on which the option shall have been
exercised. The date and time the Option Equity Income Securities are delivered
are sometimes referred to as the "Second Closing Date" and the First Closing
Date and the Second Closing Date are sometimes each referred to as a "Closing
Date".
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Delivery of and payment for the Option Equity Income Securities shall be
made at the place specified pursuant to the first sentence of the first
paragraph of this Section 5 (or at such other place as shall be determined by
agreement between you and Dominion) at 10:00 A.M., Richmond, Virginia time, on
the Second Closing Date. On the Second Closing Date, Dominion, through the
facilities of DTC, shall deliver or cause to be delivered a securities
entitlement with respect to the Option Equity Income Securities to you for your
account 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 Purchase Agreement is
a further condition of your obligation hereunder. Upon delivery, the Option
Shares shall be registered in the name of Cede & Co., as nominee of DTC.
6. Covenants of Dominion. Dominion agrees that:
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(a) If you so request, Dominion, on 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. You will be deemed to have
made such a request for copies for yourself and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ &
Valentine LLP, your counsel, with respect to any such documents that are
not electronically available through the Commission's ▇▇▇▇▇ filing system.
(b) Dominion will pay all expenses in connection with (i) the
preparation and filing by it of the Registration Statement and the
Prospectus, (ii) the preparation, issuance, listing and delivery of the
Equity Income Securities, (iii) any fees and expenses of the Trustee, the
Purchase Contract Agent, the Securities Intermediary and the Collateral
Agent and (iv) 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). In addition, Dominion will
pay the reasonable out of pocket fees and disbursements of your counsel,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP, in connection with the qualification
of the Equity Income Securities 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 Equity
Income Securities is required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it is necessary at any time to amend the Prospectus to comply with the
Act, Dominion promptly will (i) notify you to suspend solicitation of
purchases of the Equity Income Securities and (ii) at its expense, prepare
and file with the Commission an amendment or supplement
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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 Dominion shall not file such
documents or amendments without also furnishing copies thereof to you
and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP. Any such documents or
amendments which are electronically available through the Commission's
▇▇▇▇▇ filing system shall be deemed to have been furnished by Dominion
to you and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP.
(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 prior to filing; 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 proper information as may be
lawfully required and otherwise cooperate in qualifying the Equity
Income Securities for offer and sale under the securities or blue sky
laws of such jurisdictions 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine
LLP 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
Purchase Agreement is terminated in accordance with the provisions of
Sections 7 or 8 hereof, Dominion shall reimburse you for the amount of
such fees and disbursements.
(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 Equity Income Securities, Common Stock or
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Purchase Contracts, as the case may be, or any securities of Dominion
similar to the Equity Income Securities, or any security convertible
into or exercisable or exchangeable for Equity Income Securities,
Common Stock or Purchase Contracts or any securities of Dominion
similar to the Equity Income Securities, 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
Equity Income Securities, Common Stock, Purchase Contracts or any
securities of Dominion similar to the Equity Income Securities or, any
such securities convertible into or exercisable or exchangeable for
such securities, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Equity Income
Securities, Common Stock, Purchase Contracts 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
Purchase Agreement; (B) Dominion's Treasury PIES or Units or Corporate
PIES or Units 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 Units or Treasury PIES or Units; (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 (or the sale by any of Dominion's Executive
Officers or directors of Common Stock received as dividends) in
connection with any employee benefit plans, employee stock purchase
plans, non-employee director stock plans, dividend reinvestment plans,
employee retirement 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 Equity Income Securities; (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; and (J) the issuance by Dominion of up to
10,340,000 shares of Common Stock pursuant to a Purchase Agreement
dated March 13, 2002, between Dominion and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(i) To use best efforts to complete the listing application for
the Corporate Units and the Common Stock to be issued and sold
pursuant to the Purchase Contracts on
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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 You.
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(a) Your obligations to purchase and pay for the Equity Income
Securities on the Closing Date shall be subject to the following
conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and
no proceedings for that purpose shall be pending before, or to
the knowledge of Dominion threatened by, the Commission on such
date. You shall have received, prior to payment for the Equity
Income Securities, 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) The relevant order or orders of the Commission
pursuant to the Holding Company Act of 1935, as amended,
permitting the issuance and sale of the Equity Income Securities,
a copy of which has been provided to you, shall remain in full
force and effect.
(iii) On the Closing Date you shall receive the opinions
of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP, your counsel,
McGuireWoods LLP, counsel to Dominion and Dominion's General
Counsel, substantially in the forms attached hereto as schedules,
all in form and substance satisfactory to you.
(iv) You shall have received letters addressed to you
from Deloitte & Touche LLP, dated the date of this Purchase
Agreement and the Closing Date, 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 Purchase
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 the sale of Dominion's Common Stock as
contemplated in Section 6(h)(vii) 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
of such debt 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
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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 adverse
that it makes it impracticable to proceed with the offering or
delivery of the Equity Income Securities on the terms and in the
manner contemplated in the Prospectus and this Purchase
Agreement, and (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; provided the effect of such outbreak,
escalation, declaration, calamity, crisis or material adverse
change shall, in your reasonable judgment, make it impracticable
to proceed with the offering or delivery of the Equity Income
Securities on the terms and in the manner contemplated in the
Prospectus and in this Purchase Agreement.
(vi) On the Closing Date, the representations and
warranties of Dominion in this Purchase 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 Purchase Agreement; and, on 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 Equity Income Securities shall have
been satisfactory in form and substance to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
& Valentine LLP.
(b) In case any of the conditions specified above in Section
7(a) shall not have been fulfilled, this Purchase Agreement may be
terminated by you upon mailing or delivering written notice thereof to
Dominion. Any such termination shall be without liability of any party
to any other party except as otherwise provided in Section 9 and
Sections 6(b), 6(g) and 7(c) hereof.
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(c) If this Purchase 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 Purchase Agreement, or if for any reason Dominion shall be unable to
perform its obligations under this Purchase 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 counsel as provided in
Section 6(g)) reasonably incurred by you in connection with this Purchase
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 Equity Income Securities shall be subject to the conditions set
forth in the first sentence of Section 7(a)(i) and in Section 7(a)(ii). In case
such conditions shall not have been fulfilled, this Purchase Agreement may be
terminated by Dominion by mailing or delivering written notice thereof to you.
Any such termination shall be without liability of any party to any other party
except as otherwise provided in Sections 6(b), 6(g) and 9 hereof.
9. Indemnification and Contribution. (a) Dominion agrees to indemnify and
--------------------------------
hold harmless 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,
against any and all losses, claims, damages or liabilities, joint or several, to
which you may become subject under the Securities Act, the Securities Exchange
Act, or any other statute or common law and to reimburse you and any such
controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable outside counsel fees) incurred by you in
connection with investigating or defending any such losses, claims, damages, or
liabilities, or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or in either such
document as amended or supplemented (if any amendments or supplements thereto
shall have been furnished), or any preliminary Prospectus (if and when used
prior to the date hereof), or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the foregoing indemnity
agreement, insofar as it relates to any preliminary Prospectus, shall not inure
to the benefit of you (or to the benefit of any person who controls you) on
account of any losses, claims, damages or liabilities arising out of the sale of
any of the Equity Income Securities by you 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 or on behalf of you 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
-11-
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 or on behalf of you 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 effect, regardless of any
investigation made by or on behalf of you or any such controlling person, and
shall survive the delivery of the Equity Income Securities.
(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
date hereof), or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, if such statement or omission was made in reliance upon
information furnished herein or in writing to Dominion by or on behalf of you
for use in the Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or any preliminary Prospectus. The 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
Equity Income Securities.
(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 controlling person as
aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written notice of
the commencement thereof to the party or parties against whom indemnity shall be
sought hereunder, but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or parties
from any liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of any such
action shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense or, if it so elects, to assume (in
conjunction with any other indemnifying parties) the
-12-
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees and expenses of any
additional outside counsel retained by them; provided that, if the defendants
(including impleaded parties) in any such action include both the indemnified
party and the indemnifying party (or parties) and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party (or parties), the indemnified party shall
have the right to select separate counsel to assert such legal defenses and to
participate otherwise in the defense of such action on behalf of such
indemnified party. The indemnifying party shall bear the reasonable fees and
expenses of outside counsel retained by the indemnified party if (i) the
indemnified party shall have retained such counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to one
local counsel), representing the indemnified parties under Section 9(a) or 9(b),
as the case may be, who are parties to such action), (ii) the indemnifying party
shall have elected not to assume the defense of such action, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of the action, or (iv) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. Notwithstanding the foregoing sentence, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (such consent not to be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such a proceeding), unless
such settlement (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
-13-
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. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Purchase 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 or on behalf of you or any of your controlling persons, or
by or on behalf of Dominion, and shall survive delivery of the Equity Income
Securities.
12. Miscellaneous. The validity and interpretation of this Purchase
-------------
Agreement shall be governed by the laws of the State of New York. This Purchase
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 Purchase 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
Purchase Agreement or any provision herein contained. The term "successors" as
used in this Purchase Agreement shall not include any purchaser, as such, of any
of the Equity Income Securities 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., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇).
-14-
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
-15-
The foregoing agreement is
hereby confirmed and accepted,
as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Authorized Signatory
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
-16-
SCHEDULE I
Total Number of Firm Equity Income Securities Being Purchased: 6,000,000 Equity
Income Securities
Coupon on Senior Note: 5.75 %
Purchase Contract Payment: 3.00 %
Combined Payment Rate on Corporate Units: 8.75 %
Purchase Price per Equity Income Security: $50.00
Total Purchase Price: $300,000,000
Time of Delivery: March 20, 2002, 10:00 A.M.
Closing Location: One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Equity Income Securities will be available for inspection at:
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices to Purchaser:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any notice pursuant to Section 9(c) also
sent to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & Valentine LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: F. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., Esquire
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
I-1
SCHEDULE II
[Intentionally omitted]
II-1
SCHEDULE III
[Intentionally omitted]
III-1
SCHEDULE IV
PROPOSED FORM OF OPINION
OF
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & VALENTINE LLP
Bank of America Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: DOMINION RESOURCES, INC.
6,000,000 EQUITY INCOME SECURITIES
CONSISTING OF 6,000,000 CORPORATE UNITS
March 20, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as your counsel in connection with the arrangements for
issuance by Dominion Resources, Inc. (Dominion) of up to 6,000,000 Equity Income
Securities pursuant to a Purchase Agreement dated March 13, 2002, by and between
you and Dominion (the Purchase Agreement). This letter is being delivered to you
pursuant to the Purchase Agreement. All terms not otherwise defined herein shall
have the meanings set forth 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 of the Trustee, 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,
the Trustee and other appropriate persons and statements contained in the
Registration Statement hereinafter mentioned. All legal proceedings taken as of
the date hereof in connection with the transactions contemplated by the Purchase
Agreement have been satisfactory to us.
In addition, we attended the closing held today at the offices of
McGuireWoods LLP, One ▇▇▇▇▇ 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
IV-1
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. An appropriate order of the Commission with respect to the sale of
the Equity Income Securities under the Public Utility Holding Company Act of
1935, as amended, has been issued, and such order remains in effect at this date
and constitutes valid and sufficient authorization for the sale of the Equity
Income Securities 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 Equity Income Securities 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
Equity Income Securities in such states) and the carrying out of the provisions
of the Purchase Agreement.
3. The Purchase Agreement has been has been duly authorized by all
necessary corporate action and has been duly executed and delivered by Dominion.
4. The Indenture has been duly authorized, executed and delivered by
Dominion and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of Dominion, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
5. The Corporate Units have been duly authorized, executed and
delivered by Dominion, and assuming due execution by the Purchase Contract Agent
as attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent and upon payment therefor as set forth in the Purchase
Agreement, will be duly and validly issued and outstanding, and will constitute
valid and binding obligations of Dominion, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
6. The Treasury Units have been duly authorized, executed and
delivered by Dominion, and assuming due execution by the Purchase Contract Agent
as attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent, will be duly and validly issued and outstanding, and
will constitute valid and binding obligations of Dominion entitled to the
benefits of the Purchase Contracts, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement
IV-2
is considered in a proceeding in equity or at law).
7. The Senior Notes have been duly authorized and executed by
Dominion and when completed and authenticated by the Trustee in accordance with,
and in the form contemplated by, the Indenture and issued, delivered and paid
for as provided in the Purchase Agreement, will have been duly issued under the
Indenture and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
8. The unissued shares of Common Stock to be issued and sold by
Dominion pursuant to the Purchase Contracts have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, will be duly and
validly issued, fully paid and non-assessable.
9. The Purchase Contract Agreement has been duly authorized,
executed and delivered by Dominion and, assuming due execution and delivery by
the Purchase Contract Agent, the Securities Intermediary and the Collateral
Agent, constitutes a valid and binding agreement of Dominion, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law); provided, however, that a
federal court exercising jurisdiction over the bankruptcy case of Dominion, if
such case were commenced and the issue were properly presented to the court and
the court properly evaluated the pertinent decisional and other authorities,
should conclude that, upon the occurrence of a Termination Event, Section
365(e)(1) of the Bankruptcy Code (11 U.S.C. ▇▇.▇▇. 101-1330, as amended) should
not substantively limit the provisions of Sections 3.15 and 5.8 of the Purchase
Contract Agreement and Section 5.4 of the Pledge Agreement that require
termination of the Purchase Contract Agreement and release of the Collateral
Agent's security interest in the Senior Notes or the Treasury Securities.
However, this opinion is not based on directly controlling legal authority, but
rather on what we believe to be a sound analysis of existing authorities from
various jurisdictions regardless of the precedential effect on the particular
court that might have occasion to make such a decision.
10. The Remarketing Agreement has been duly authorized by all
necessary corporate action and has been duly executed and delivered by Dominion.
11. The Pledge Agreement has been duly authorized, executed and
delivered by Dominion and, assuming due execution and delivery by the Purchase
Contract Agent, constitutes a valid and binding agreement of Dominion, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law); provided, however, that a
federal court exercising jurisdiction over the bankruptcy case of Dominion, if
such case were commenced and the issue were properly presented to the court and
the court properly evaluated the pertinent decisional and other authorities,
should conclude that, upon the occurrence of a
IV-3
Termination Event, Section 365(e)(1) of the Bankruptcy Code (11 U.S.C. (S)(S)
101-1330, as amended) should not substantively limit the provisions of Sections
3.15 and 5.8 of the Purchase Contract Agreement and Section 5.4 of the Pledge
Agreement that require termination of the Purchase Contract Agreement and
release of the Collateral Agent's security interest in the Senior Notes or the
Treasury Securities. However, this opinion is not based on directly controlling
legal authority, but rather on what we believe to be a sound analysis of
existing authorities from various jurisdictions regardless of the precedential
effect on the particular court that might have occasion to make such a decision.
12. The Registration Statement with respect to the Equity Income
Securities filed pursuant to the Securities Act, has become effective and
remains in effect at this date, and the Prospectus may lawfully be used for the
purposes specified in the Securities Act in connection with the offer for sale
and the sale of Equity Income Securities in the manner therein specified.
13. The Registration Statement and the Prospectus (except that we
express no comment or belief with respect to any historical or pro forma
financial statements and schedules and other financial or statistical
information contained or incorporated by reference in the Registration Statement
or Prospectus) appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act, and to the
applicable rules and regulations of the Commission thereunder.
14. As to the statements relating to the Equity Income Securities,
the Senior Notes, and the Common Stock contained in the prospectus initially
filed as part of the Registration Statement under DESCRIPTION OF DEBT
SECURITIES, ADDITIONAL TERMS OF SENIOR DEBT SECURITIES, DESCRIPTION OF CAPITAL
STOCK and DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS, as
all or any of them have been supplemented by the statements under DESCRIPTION OF
THE EQUITY INCOME SECURITIES, DESCRIPTION OF THE PURCHASE CONTRACTS, CERTAIN
PROVISIONS OF THE PURCHASE CONTRACTS, THE PURCHASE CONTRACT AGREEMENT, AND THE
PLEDGE AGREEMENT and DESCRIPTION OF THE SENIOR NOTES in the Prospectus
Supplement dated March 13, 2002, 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 statistical statements in the Incorporated Documents), we have relied
solely on the officers of Dominion. We have not undertaken to determine
independently the accuracy or completeness of the statements contained or
incorporated by reference in the Registration Statement or in the Prospectus. We
accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement, except as stated above in the
preceding paragraph in regard to the captions set forth in such preceding
paragraph. We note that the Incorporated Documents were prepared and filed by
Dominion without our participation. We have, however, participated in
conferences with counsel for and representatives of Dominion in connection with
the preparation of the Registration Statement, the Prospectus as it was
initially issued and as has been supplemented or amended, and we have reviewed
the Incorporated Documents and such of
IV-4
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 contained on the date the Registration Statement became
effective, or the Prospectus contained on the date it was issued or the date it
was supplemented or amended, or that the Registration Statement or the
Prospectus (in all cases, excepting the financial statements and schedules and
other financial information contained or incorporated therein by reference and
any pro forma financial information (and notes thereto) included or incorporated
by reference therein, as to which we express no belief) contains on the date
hereof, any untrue statement of a material fact or omitted or omits on the date
hereof to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The foregoing assurance is provided
on the basis that any statement contained in an Incorporated Document shall be
deemed not to be contained in the Registration Statement or Prospectus if the
statement has been modified or superseded by any statement in a subsequently
filed Incorporated Document or in the Registration Statement or Prospectus prior
to the date of the 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,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & VALENTINE LLP
IV-5
SCHEDULE V
PROPOSED FORM OF OPINION
OF
MCGUIREWOODS LLP
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: DOMINION RESOURCES, INC.
6,000,000 EQUITY INCOME SECURITIES
CONSISTING OF 6,000,000 CORPORATE UNITS
March 20, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The arrangements for issuance of up to 6,000,000 Equity Income
Securities of Dominion Resources, Inc. (Dominion), pursuant to an Purchase
Agreement dated March 13, 2002, by and between Dominion and you (the Purchase
Agreement), have been taken under our supervision as counsel for Dominion. This
letter is being delivered to you pursuant to the Purchase Agreement. All terms
not otherwise defined herein shall have the meanings set forth 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 of the Trustee, 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, the Trustee and other appropriate
persons and statements contained in the Registration Statement hereinafter
mentioned. All legal proceedings taken as of the date hereof in connection with
the transactions contemplated by the Purchase Agreement have been satisfactory
to us.
On this basis we are of the opinion that:
V-1
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 by Dominion or for the offering, issuance, sale or delivery of the
Equity Income Securities. An appropriate order of the Securities and Exchange
Commission (the Commission) with respect to the sale of the Equity Income
Securities under the Public Utility Holding Company Act of 1935, as amended, has
been issued, and such order remains in effect at this date and constitutes valid
and sufficient authorization for the sale of the Equity Income Securities as
contemplated by the Purchase Agreement.
2. The Indenture has been duly authorized, executed and delivered
by Dominion and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of Dominion, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
3. The Corporate Units have been duly authorized, executed and
delivered by Dominion, and assuming due execution by the Purchase Contract Agent
as attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent and upon payment therefor as set forth in the Purchase
Agreement, will be duly and validly issued and outstanding, and will constitute
valid and binding obligations of Dominion, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
4. The Treasury Units have been duly authorized, executed and
delivered by Dominion, and assuming due execution by the Purchase Contract Agent
as attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent, will be duly and validly issued and outstanding, and
will constitute valid and binding obligations of Dominion, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
5. The Senior Notes have been duly authorized and executed by
Dominion and when completed and authenticated by the Trustee in accordance with,
and in the form contemplated by, the Indenture and issued, delivered and paid
for as provided in the Purchase Agreement, will have been duly issued under the
Indenture and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
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6. The unissued shares of Common Stock to be issued and sold by
Dominion pursuant to the Purchase Contracts have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, will be duly and
validly issued, fully paid and non-assessable.
7. The Purchase Contract Agreement has been duly authorized,
executed and delivered by Dominion and, assuming due execution and delivery by
the Purchase Contract Agent, the Securities Intermediary and the Collateral
Agent, constitutes a valid and binding agreement of Dominion, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law); provided, however, that a
federal court exercising jurisdiction over the bankruptcy case of Dominion, if
such case were commenced and the issue were properly presented to the court and
the court properly evaluated the pertinent decisional and other authorities,
should conclude that, upon the occurrence of a Termination Event, Section
365(e)(1) of the Bankruptcy Code (11 U.S.C. ▇▇.▇▇. 101-1330, as amended) should
not substantively limit the provisions of Sections 3.15 and 5.8 of the Purchase
Contract Agreement and Section 5.4 of the Pledge Agreement that require
termination of the Purchase Contract Agreement and release of the Collateral
Agent's security interest in the Senior Notes or the Treasury Securities.
However, this opinion is not based on directly controlling legal authority, but
rather on what we believe to be a sound analysis of existing authorities from
various jurisdictions regardless of the precedential effect on the particular
court that might have occasion to make such a decision.
8. The Pledge Agreement has been duly authorized, executed and
delivered by Dominion and, assuming due execution and delivery by the Purchase
Contract Agent, constitutes a valid and binding agreement of Dominion, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law); provided, however, that a
federal court exercising jurisdiction over the bankruptcy case of Dominion, if
such case were commenced and the issue were properly presented to the court and
the court properly evaluated the pertinent decisional and other authorities,
should conclude that, upon the occurrence of a Termination Event, Section
365(e)(1) of the Bankruptcy Code (11 U.S.C. ▇▇.▇▇. 101-1330, as amended) should
not substantively limit the provisions of Sections 3.15 and 5.8 of the Purchase
Contract Agreement and Section 5.4 of the Pledge Agreement that require
termination of the Purchase Contract Agreement and release of the Collateral
Agent's security interest in the Senior Notes or the Treasury Securities.
However, this opinion is not based on directly controlling legal authority, but
rather on what we believe to be a sound analysis of existing authorities from
various jurisdictions regardless of the precedential effect on the particular
court that might have occasion to make such a decision.
9. The Corporate Units, the Indenture, the Senior Notes, the
Common Stock to be issued and sold pursuant to the Purchase Contract Agreement,
the Purchase Contract Agreement, the Pledge Agreement and the Remarketing
Agreement, when the Corporate Units
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are delivered pursuant to the Agreement, will conform to the descriptions
thereof contained in the Prospectus.
10. The Registration Statement and the Prospectus (except the
financial statements, any pro forma information and schedules contained or
incorporated by reference therein, as to which we express no opinion) appear on
their face to be appropriately responsive in all material respects to the
requirements of the Securities Act, and to the applicable rules and regulations
of the Commission thereunder.
11. We are of the opinion that the statements relating to the
Equity Income Securities, the Senior Notes, and the Common Stock contained in
the prospectus initially filed as part of the Registration Statement under
DESCRIPTION OF DEBT SECURITIES, ADDITIONAL TERMS OF SENIOR DEBT SECURITIES,
DESCRIPTION OF CAPITAL STOCK and DESCRIPTION OF STOCK PURCHASE CONTRACTS AND
STOCK PURCHASE UNITS, as all or any of them have been supplemented by the
statements under DESCRIPTION OF THE EQUITY INCOME SECURITIES, DESCRIPTION OF THE
PURCHASE CONTRACTS, CERTAIN PROVISIONS OF THE PURCHASE CONTRACTS, THE PURCHASE
CONTRACT AGREEMENT, AND THE PLEDGE AGREEMENT and DESCRIPTION OF THE SENIOR NOTES
in the Prospectus Supplement dated March 13, 2002 are substantially accurate and
fair.
12. With regard to the discussion in the Prospectus Supplement
under the caption CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS, we
are of the opinion that under current United States federal income tax law,
although the discussion does not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership and disposition of
the Equity Income Securities, the Senior Notes and the Common Stock acquired
under a Purchase Contract, such discussion constitutes an accurate summary of
the matters discussed therein in all material respects. In rendering the
aforementioned tax opinion, we have considered the current provisions of the
Internal Revenue Code of 1986, as amended, Treasury regulations promulgated
thereunder, judicial decisions and Internal Revenue Service rulings, all of
which are subject to change, which changes may be retroactively applied. A
change in the authorities upon which our opinion is based could affect our
conclusions. There can be no assurance, moreover, that any of the opinions
expressed herein will be accepted by the Internal Revenue Service, or, if
challenged, by a court.
We have participated in conferences with officers and other
representatives of 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 which Dominion satisfied the conditions contained in Section 7 of the
Purchase Agreement. We have not, however, undertaken to make any independent
review of other records of Dominion which our investigation did not lead us to
deem pertinent. As to the statistical statements in the Registration Statement
(which includes the Incorporated Documents), we have relied solely on
V-4
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 the preceding two paragraphs in regard to the captions
set forth in such preceding two paragraphs. But such conferences, consultation,
examination and attendance disclosed to us no information with respect to such
other matters that gives us reason to believe that the Registration Statement
contained on the date the Registration Statement became effective, or the
Prospectus contained on the date it was issued, or that the Registration
Statement or the Prospectus (in each case, except with respect to the financial
statements and schedules and other financial information contained or
incorporated by reference in the Registration Statement or Prospectus) contains
on the date hereof, any untrue statement of a material fact or omitted on such
date or omits on the date hereof to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
foregoing assurance is provided on the basis that any statement contained in an
Incorporated Document shall be deemed not to be contained in the Registration
Statement or Prospectus if the statement has been modified or superseded by any
statement in a subsequently filed Incorporated Document or in the Registration
Statement or Prospectus prior to the date of the 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.
Yours very truly,
MCGUIREWOODS LLP
V-5
SCHEDULE VI
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL OF
DOMINION RESOURCES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: DOMINION RESOURCES, INC.
6,000,000 EQUITY INCOME SECURITIES
CONSISTING OF 6,000,000 CORPORATE UNITS
March 20, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The arrangements for issuance of up to 6,000,000 Equity Income
Securities of Dominion Resources, Inc. (Dominion), pursuant to an Purchase
Agreement dated March 13, 2002, by and between Dominion and you listed on
Schedule II as attached thereto (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 Equity Income Securities, and I have examined such corporate records,
certificates and other documents and such questions of the law as I have
considered necessary or appropriate for the purposes of this opinion. In
addition, I have responsibility for supervising lawyers who may have been asked
by me or others to review legal matters arising in connection with the offering
and sale of the Equity Income Securities. Accordingly, some of the matters
referred to herein have not been handled personally by me, but I have been made
familiar with
VII-1
the facts and circumstances and the applicable law, and the opinions herein
expressed are my own or are opinions of others in which I concur.
On this basis I am of the opinion that:
1. 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. The Remarketing Agreement has been duly authorized, executed and
delivered by Dominion.
5. 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,
VII-2