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EXHIBIT 4(v)
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XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Call Option Holder
AND
THE BANK OF NEW YORK,
as Unit Agent and as Attorney-In-Fact
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CALL OPTION AGREEMENT
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Dated as of July , 1999
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CALL OPTION AGREEMENT
CALL OPTION AGREEMENT, dated as of July , 1999, between Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, as Call Option Holder, and The Bank of
New York, as Unit Agent and as attorney-in-fact of the Holders from time to time
of the Normal Units.
RECITALS
GF CMS Energy Corporation and the Unit Agent are parties to the Master
Unit Agreement, dated as the date hereof (as the same may be supplemented or
amended in accordance with the terms thereof, the "Master Unit Agreement"). The
Master Unit Agreement contemplates that the Company will issue Trust Preferred
Securities and Junior Subordinated Debentures, and that Trust Preferred
Securities or Junior Subordinated Debentures will underlie Normal Units
outstanding from time to time thereunder.
It is intended that the Holders from time to time of the Normal Units
grant Call Options entitling the Call Option Holder to acquire the Trust
Preferred Securities or Junior Subordinated Debentures underlying the related
Normal Units on the terms and subject to the conditions set forth herein.
Pursuant to the terms of the Principal Agreements and the Unit Certificates for
the Normal Units, the Holders from time to time of the Normal Units irrevocably
authorize the Unit Agent, as attorney-in-fact of such Holders, to enter into
such Call Options and execute and deliver this Agreement on behalf of such
Holders.
Accordingly, the Call Option Holder and the Unit Agent, on its own
behalf and as attorney-in-fact of the Holders from time to time of the Normal
Units, agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein
as defined in the Master Unit Agreement; and
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(b) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Aggregate Call Option Exercise Consideration" means consideration
comprised of:
(a) Treasury Securities that through their scheduled payments
will generate by each Quarterly Payment Date falling after the Call Settlement
Date and on or before the Stock Purchase Date an amount of cash equal to the
aggregate distributions or interest payments that are scheduled to be payable in
respect of the Trust Preferred Securities or Junior Subordinated Debentures
underlying the Normal Units on such Quarterly Payment Date (assuming for this
purpose, even if not true, that (i) no distributions or interest payments will
then have been deferred and (ii) that the rate of distribution on the Trust
Preferred Securities and the rate of interest on the Junior Subordinated
Debentures remains at %);
(b) Treasury Securities that through their scheduled payments
will generate by the Stock Purchase Date an amount of cash equal to the
aggregate Stated Amount of the Normal Units; and
(c) if the Company is, at the Call Settlement Date, deferring
distributions on the Trust Preferred Securities or interest payments on the
Junior Subordinated Debentures, an amount in cash equal to (i) the aggregate
unpaid distributions on the Trust Preferred Securities or interest payments on
the Junior Subordinated Debentures underlying the Normal Units accrued to the
Call Settlement Date, if the Call Settlement Date is a Quarterly Payment Date,
or (ii) the aggregate unpaid distributions on the Trust Preferred Securities or
interest payments on the Junior Subordinated Debentures underlying the Normal
Units accrued to the Quarterly Payment Date immediately preceding the Call
Settlement Date plus interest thereon at the Deferral Rate for the period from
and including such Quarterly Payment Date to but excluding such Call Settlement
Date (computed on the basis of a 360-day year of twelve 30-day months), if the
Call Settlement Date is not a Quarterly Payment Date.
"Call Option Expiration Date" means , 2002 (or, if such date is not a
Business Day, the next succeeding Business Day).
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ARTICLE II
Call Option
Section 2.1 Grant. The Unit Agent, on behalf of and as attorney-in-fact
for the Holders from time to time of the Normal Units, hereby grants the Call
Options to the Call Option Holder on the terms and subject to the conditions set
forth herein.
Section 2.2 Consideration. As consideration for such Call Options,
concurrently with the execution hereof, the Call Option Holder is paying to the
underwriters under the Underwriting Agreement (who are acting in this regard on
behalf of the initial investors in the Normal Units) an amount equal to $ per
Call Option.
Section 2.3 Expiration or Termination of Call Options. The Call Options
shall be irrevocable, but the Call Options and the rights of the Call Option
Holder and the obligations of the Holders of Normal Units thereunder shall (a)
expire on the Call Option Expiration Date if the Call Settlement Date has not
occurred on or prior to such date and (b) automatically terminate upon the
occurrence of a Termination Event.
ARTICLE III
Exercise of Call Options
Section 3.1 Exercise Mechanics.
(a) The Call Option Holder may exercise all (but not less than
all) the Call Options by (i) delivering to the Unit Agent and the Collateral
Agent, on or prior to the Call Option Expiration Date, a notice, substantially
in the form set forth in Annex A attached hereto, stating that the Call Option
Holder is exercising its Call Options and specifying the Call Settlement Date
therefor (which must be a Business Day falling on or before the Call Option
Expiration Date) and (ii) delivering to the Collateral Agent, by Noon, New York
City time, on the Call Settlement Date, the Aggregate Call Option Exercise
Consideration.
(b) Pursuant to the Pledge Agreement, upon receipt by the
Collateral Agent of the Aggregate Call Option Exercise Consideration in the
manner contemplated hereby and by the Pledge Agreement, the Collateral Agent
shall release
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the Trust Preferred Securities or Junior Subordinated Debentures underlying the
Normal Units, free and clear of any lien, pledge or security interest created by
the Pledge Agreement, and transfer such released Trust Preferred Securities or
Junior Subordinated Debentures to the Call Option Holder or its designee as
specified in the notice referred to in Section 3.1(a) above.
(c) The Unit Agent shall, not later than three Business Days
following the Call Settlement Date, mail notice of the exercise of the Call
Options to the Holders of Normal Units in the manner prescribed by the Master
Unit Agreement.
ARTICLE IV
Miscellaneous
Section 4.1 This Agreement may be amended in the manner set forth in
Section 8.01 of the Master Unit Agreement with respect to supplemental
agreements.
Section 4.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF. The Call Option Holder, the Unit Agent
and the Holders from time to time of the Normal Units, acting through the Unit
Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Call Option Holder, the Unit Agent and the Holders from
time to time of the Normal Units, acting through the Unit Agent as their
attorney-in-fact, irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 4.3 Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "Address for Notices"specified below its name on the
signature pages hereof or, as to
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any party, at such other address as shall be designated by such party in a
notice to the other party. Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
Section 4.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Call Option Holder and the Unit Agent, and the Holders from time to time of the
Normal Units, by their acceptance of the same, shall be deemed to have agreed to
be bound by the provisions hereof and to have ratified the agreements of, and
the grant of the Call Options hereunder by, the Unit Agent.
Section 4.5 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 4.6 Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (b) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Call Option Holder
(Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation)
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
THE BANK OF NEW YORK,
as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Normal Units
By:
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Name:
Title:
Address for Notices:
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ANNEX A
EXERCISE NOTICE
Reference is made to the Call Option Agreement, dated as of July , 1999
(the "Call Option Agreement"), between Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, as Call Option Holder, and The Bank of New York, as Unit Agent and
attorney-in-fact of the Holders from time to time of the Normal Units.
Capitalized terms used herein but not defined are used herein as defined in the
Call Option Agreement.
The undersigned hereby exercises all of the Call Options underlying the
Normal Units and specifies ______________ as the Call Settlement Date.
Certificates representing the Trust Preferred Securities or Junior Subordinated
Debentures underlying the Normal Units should be registered in the name of
____________ and delivered to [insert address].
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
As Call Option Holder
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(Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation)
Date:
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