EXHIBIT 4.15
================================================================================
DTE ENERGY COMPANY
AND
[THE BANK OF NEW YORK,]
AS PURCHASE CONTRACT AGENT
------------------
PURCHASE CONTRACT AGREEMENT
------------------
Dated as of ___________
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.....................................................................................1
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS............................................................9
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO AGENT...........................................................10
SECTION 1.4. ACTS OF HOLDERS; RECORD DATES..................................................................11
SECTION 1.5. NOTICES........................................................................................12
SECTION 1.6. NOTICE TO HOLDERS; WAIVER......................................................................12
SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................................................13
SECTION 1.8. SUCCESSORS AND ASSIGNS.........................................................................13
SECTION 1.9. SEPARABILITY CLAUSE............................................................................13
SECTION 1.10. BENEFITS OF AGREEMENT..........................................................................13
SECTION 1.11. GOVERNING LAW..................................................................................13
SECTION 1.12. LEGAL HOLIDAYS.................................................................................13
SECTION 1.13. COUNTERPARTS...................................................................................14
SECTION 1.14. INSPECTION OF AGREEMENT........................................................................14
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1. FORMS OF CERTIFICATES GENERALLY................................................................14
SECTION 2.2. FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION..................................................15
ARTICLE III
THE SECURITIES
SECTION 3.1. TITLE AND TERMS; DENOMINATIONS.................................................................15
SECTION 3.2. RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES...........................................15
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.................................................16
SECTION 3.4. TEMPORARY CERTIFICATES.........................................................................17
SECTION 3.5. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE............................................17
SECTION 3.6. BOOK-ENTRY INTERESTS...........................................................................18
SECTION 3.7. NOTICES TO HOLDERS.............................................................................19
SECTION 3.8. APPOINTMENT OF SUCCESSOR CLEARING AGENCY.......................................................19
SECTION 3.9. DEFINITIVE CERTIFICATES........................................................................19
SECTION 3.10. MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES.............................................20
SECTION 3.11. PERSONS DEEMED OWNERS..........................................................................21
SECTION 3.12. CANCELLATION...................................................................................21
SECTION 3.13. ESTABLISHMENT OR REESTABLISHMENT OF STRIPPED UNITS.............................................21
SECTION 3.14. ESTABLISHMENT OR REESTABLISHMENT OF NORMAL UNITS...............................................23
SECTION 3.15. TRANSFER OF COLLATERAL UPON OCCURRENCE OF TERMINATION EVENT....................................24
SECTION 3.16. NO CONSENT TO ASSUMPTION.......................................................................25
SECTION 3.17. CUSIP NUMBERS..................................................................................25
ARTICLE IV
THE DEBT SECURITIES
SECTION 4.1. PAYMENT OF INTEREST; RIGHTS TO INTEREST PRESERVED; INTEREST RATE RESET; NOTICE.................25
SECTION 4.2. NOTICE AND VOTING..............................................................................26
SECTION 4.3. TAX EVENT REDEMPTION...........................................................................27
[SECTION 4.4. CONSENT TO TREATMENT FOR TAX PURPOSES..........................................................27
i
ARTICLE V
THE PURCHASE CONTRACTS
SECTION 5.1. PURCHASE OF COMMON STOCK.......................................................................27
SECTION 5.2. PAYMENT OF PURCHASE PRICE......................................................................29
SECTION 5.3. ISSUANCE OF COMMON STOCK.......................................................................32
SECTION 5.4. ADJUSTMENT OF SETTLEMENT RATE..................................................................33
SECTION 5.5. NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.................................................37
SECTION 5.6. TERMINATION EVENT; NOTICE......................................................................38
SECTION 5.7. EARLY SETTLEMENT...............................................................................38
SECTION 5.8. NO FRACTIONAL SHARES...........................................................................40
SECTION 5.9. CHARGES AND TAXES..............................................................................40
ARTICLE VI
REMEDIES
SECTION 6.1. UNCONDITIONAL RIGHT OF HOLDERS TO PURCHASE COMMON STOCK........................................40
SECTION 6.2. RESTORATION OF RIGHTS AND REMEDIES.............................................................41
SECTION 6.3. RIGHTS AND REMEDIES CUMULATIVE.................................................................41
SECTION 6.4. DELAY OR OMISSION NOT WAIVER...................................................................41
SECTION 6.5. UNDERTAKING FOR COSTS..........................................................................41
SECTION 6.6. WAIVER OF STAY OR EXTENSION LAWS...............................................................42
ARTICLE VII
THE AGENT
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES............................................................42
SECTION 7.2. NOTICE OF DEFAULT..............................................................................43
SECTION 7.3. CERTAIN RIGHTS OF AGENT........................................................................43
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.........................................44
SECTION 7.5. MAY HOLD SECURITIES............................................................................44
SECTION 7.6. MONEY HELD IN CUSTODY..........................................................................44
SECTION 7.7. COMPENSATION AND REIMBURSEMENT.................................................................44
SECTION 7.8. CORPORATE AGENT REQUIRED; ELIGIBILITY..........................................................45
SECTION 7.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............................................45
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................................................46
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS....................................47
SECTION 7.12. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.........................................47
SECTION 7.13. NO OBLIGATIONS OF AGENT........................................................................47
SECTION 7.14. TAX COMPLIANCE.................................................................................47
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS.............................................48
SECTION 8.2. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS................................................48
SECTION 8.3. EXECUTION OF SUPPLEMENTAL AGREEMENTS...........................................................49
SECTION 8.4. EFFECT OF SUPPLEMENTAL AGREEMENTS..............................................................49
SECTION 8.5. REFERENCE TO SUPPLEMENTAL AGREEMENTS...........................................................50
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY EXCEPT UNDER CERTAIN CONDITIONS....50
SECTION 9.2. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.....................................................50
SECTION 9.3. OPINION OF COUNSEL GIVEN TO AGENT..............................................................51
ii
ARTICLE X
COVENANTS
SECTION 10.1. PERFORMANCE UNDER PURCHASE CONTRACTS...........................................................51
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY................................................................51
SECTION 10.3. COMPANY TO RESERVE COMMON STOCK................................................................52
SECTION 10.4. COVENANTS AS TO COMMON STOCK...................................................................52
ARTICLE XI
TRUST INDENTURE ACT
SECTION 11.1. TRUST INDENTURE ACT, APPLICATION...............................................................
SECTION 11.2. LISTS OF HOLDERS OF SECURITIES.................................................................
SECTION 11.3. REPORTS BY AGENT...............................................................................
SECTION 11.4. PERIODIC REPORTS TO AGENT......................................................................
SECTION 11.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT...............................................
SECTION 11.6. DEFAULTS; WAIVER...............................................................................
SECTION 11.7. AGENT'S KNOWLEDGE OF DEFAULTS..................................................................
SECTION 11.8. CONFLICTING INTERESTS..........................................................................
SECTION 11.9 DIRECTION OF AGENT.............................................................................
EXHIBIT A Form of Normal Unit Certificate
EXHIBIT B Form of Stripped Unit Certificate
EXHIBIT C Instruction to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Notice to Settle with Separate Cash
iii
PURCHASE CONTRACT AGREEMENT, dated as of __________, between DTE Energy
Company, a corporation duly organized and existing under the laws of the State
of Michigan (the "Company"), and [The Bank of New York, a New York] banking
corporation, acting as purchase contract agent for the Holders of Securities
from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute these presents a valid
agreement of the Company, in accordance with its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and nouns
and pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States;
(c) 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; and
(d) the following terms have the meanings given to them in this Section
1.1(d).
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first paragraph of
this instrument until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean such
Person.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Applicable Ownership Interest" means ______________________.
"Applicable Principal Amount" means ______________________.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York, whether or not published on days that are Legal Holidays, and of
general circulation in The City of New York. The Authorized Newspaper for the
purposes of the Reset Spread Announcement Date, is currently anticipated to be
The Wall Street Journal (NYC edition).
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification and delivered
to the Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions and trust companies in The City of New York
are permitted or required by any applicable law to close.
"Cash Settlement" has the meaning set forth in Section 5.2(a)(i).
"Certificate" means a Normal Unit Certificate or a Stripped Unit
Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose
2
name, or in the name of a nominee of that organization, shall be registered a
Global Certificate and which shall undertake to effect book-entry transfers and
pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Collateral" has the meaning specified in Section 2.1 of the Pledge
Agreement.
"Collateral Agent" means [The Bank of New York, a New York] banking
corporation, as Collateral Agent under the Pledge Agreement until a successor
Collateral Agent shall have become such pursuant to the applicable provisions of
the Pledge Agreement, and thereafter "Collateral Agent" shall mean the Person
who is then the Collateral Agent thereunder.
"Collateral Substitution" has the meaning specified in Section 3.13.
"Common Stock" means the Common Stock, without par value, of the
Company having such terms as set forth in the Company's Amended and Restated
Articles of Incorporation, as amended from time to time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
["Contract Adjustment Payment" means [include appropriate provisions
for Contract Adjustment Payments, if applicable].]
"Corporate Trust Office" means the principal corporate trust office of
the Agent at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at [101 Xxxxxxx
Street, Floor 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.]
"Coupon Rate" with respect to a Debt Security means the percentage rate
per annum at which such Debt Security will bear interest.
"Current Market Price" has the meaning specified in Section 5.4(a)(8).
["Debt Security Put Option" means the right of a holder of Debt
Securities to require the Company to repurchase the Notes on the Purchase
Contract Settlement Date or, in the event the Company becomes involved in a cash
merger before the Purchase Contract Settlement Date, on or after the date of the
cash merger, for a purchase price equal to the principal amount of the Debt
Securities plus unpaid interest accrued to, but not including, the Purchase
Contract Settlement Date, but only if the cash received on the exercise of the
option is used to settle the related Purchase Contracts.]
3
["Debt Securities" means the __________________________________ of the
Company issued under the Indenture (whether issued in connection with the
initial issuance of Normal Units or in connection with the issuance of
additional Normal Units to cover over-allotments as provided in the Underwriting
Agreement).] [substitute trust preferred securities if applicable]
["Default" means a default by the Company in any of its obligations
under this Agreement and continuance of such default for a period of [90] days
after there has been given, by registered or certified mail, to the Company by
the Agent or to the Company and the Agent by the Holders of at least [25]% of
the outstanding Purchase Contracts a written notice specifying such default and
requiring that it be remedied and stating that such notice is a "Notice of
Default" hereunder.]
"Depositary" means, initially, DTC until another Clearing Agency
becomes its successor.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning specified in Section 5.7(a).
"Early Settlement Amount" has the meaning specified in Section 5.7(a).
"Early Settlement Date" has the meaning specified in Section 5.7(a).
"Early Settlement Rate" has the meaning specified in Section 5.7(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.4(a)(6).
"Failed Remarketing" has the meaning specified in Section 5.2(b).
"Global Certificate" means a Certificate that evidences all or part of
the Securities and is registered in the name of a Depositary or a nominee
thereof.
"Holder," when used with respect to a Security, means the Person in
whose name the Security evidenced by a Normal Unit Certificate and/or a Stripped
Unit Certificate is registered in the related Normal Unit Register and/or the
Stripped Unit Register, as the case may be.
["Indenture" means the Amended Restated Indenture, dated as of April 9,
2001, between the Company and The Bank of New York, as Trustee, as amended, and
as the same may be amended or supplemented from time to time with respect to the
terms of the Debt Securities in accordance with the terms thereof.]
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer, a Vice Chairman
of the Board or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Agent.
"List of Holders" has the meaning specified in Section 11.2.
"Normal Unit" means the collective rights and obligations of a Holder
of a Normal Unit Certificate in respect of a Debt Security, subject to the
Pledge thereof, and the related Purchase Contract.
4
"Normal Unit Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Normal Units specified on
such certificate.
"Normal Unit Register" and "Normal Unit Registrar" have the respective
meanings specified in Section 3.5.
"NYSE" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, a Vice Chairman of the Board, a Managing Director or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company and delivered
to the Agent.
["One-Month Treasury Xxxx" means direct obligations of the United
States (which may be obligations traded on a when-issued basis only) having a
maturity comparable to the remaining term to the mandatory redemption date of
the Debt Securities, as agreed upon by the Company and the Reset Agent. The rate
for the One-Month Treasury Xxxx will be the bid side rate displayed at 10:00
A.M., New York City time, on the third Business Day immediately preceding the
Purchase Contract Settlement Date in the Telerate system (or if the Telerate
system is (a) no longer available on the third Business Day immediately
preceding the Purchase Contract Settlement Date or (b) in the opinion of the
Reset Agent (after consultation with the Company) no longer an appropriate
system from which to obtain such rate, such other nationally recognized
quotation system as, in the opinion of the Reset Agent (after consultation with
the Company) is appropriate). If such rate is not so displayed, the rate for the
One-Month Treasury Xxxx shall be, as calculated by the Reset Agent, the yield to
maturity for the One-Month Treasury Xxxx, expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis,
and computed by taking the arithmetic mean of the secondary market bid rates, as
of 10:30 A.M., New York City time, on the third Business Day immediately
preceding the Purchase Contract Settlement Date, of three leading United States
government securities dealers selected by the Reset Agent (after consultation
with the Company) (which may include the Reset Agent or an Affiliate thereof).]
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company or an Affiliate.
"Outstanding Securities," with respect to any Normal Unit or Stripped
Unit, means, as of the date of determination, all Normal Units or Stripped Units
evidenced by Certificates theretofore authenticated, executed and delivered
under this Agreement, except:
(i) If a Termination Event has occurred, (A) Stripped Units
and (B) Normal Units for which the Stated Amount of the related Debt
Securities or the appropriate Applicable Ownership Interest in the
Treasury Portfolio has been theretofore deposited with the Agent in
trust for the Holders of such Normal Units;
(ii) Normal Units and Stripped Units evidenced by Certificates
theretofore cancelled by the Agent or delivered to the Agent for
cancellation or deemed cancelled pursuant to the provisions of this
Agreement; and
5
(iii) Normal Units and Stripped Units evidenced by
Certificates in exchange for or in lieu of which other Certificates
have been authenticated, executed on behalf of the Holder and delivered
pursuant to this Agreement, other than any such Certificate in respect
of which there shall have been presented to the Agent proof
satisfactory to it that such Certificate is held by a bona fide
purchaser in whose hands the Normal Units or Stripped Units evidenced
by such Certificate are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the Normal Units or Stripped Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Normal Units or
Stripped Units owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Normal Units or
Stripped Units which a Responsible Officer of the Agent actually knows to be so
owned shall be so disregarded. Normal Units or Stripped Units so owned which
have been pledged in good faith may be regarded as Outstanding Securities if the
pledgee establishes to the satisfaction of the Agent the pledgee's right so to
act with respect to such Normal Units or Stripped Units and that the pledgee is
not the Company or any Affiliate of the Company.
"Payment Date" means each _____, _____, _____ and _____, commencing
_____.
"Permitted Investments" has the meaning set forth in Section 1.1 of the
Pledge Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge under the Pledge Agreement of the Debt
Securities or the Treasury Securities, in each case constituting a part of the
Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent and the Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Securities.
"Predecessor Certificate" means a Predecessor Normal Unit Certificate
or a Predecessor Stripped Unit Certificate.
"Predecessor Normal Unit Certificate" of any particular Normal Unit
Certificate means every previous Normal Unit Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Normal Units evidenced thereby; and, for the purposes of this definition, any
Normal Unit Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Normal Unit
Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Normal Unit
Certificate.
"Predecessor Stripped Unit Certificate" of any particular Certificate
means every previous Stripped Unit Certificate evidencing all or a portion of
the rights and obligations of the
6
Company and the Holder under the Stripped Units evidenced thereby; and, for the
purposes of this definition, any Stripped Unit Certificate authenticated and
delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Stripped Unit Certificate shall be deemed to evidence
the same rights and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Stripped Unit Certificate.
"Proceeds" has the meaning set forth in Section 1.1 of the Pledge
Agreement.
"Purchase Contract," when used with respect to any Security, means the
contract forming a part of such Security and obligating the Company to sell and
the Holder of such Security to purchase Common Stock on the terms and subject to
the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Date" means _____.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.3.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section 5.4(a)(6).
"Record Date" for the distribution payable on any Payment Date means,
as to any Global Certificate, the Business Day next preceding such Payment Date,
and as to any other Certificate, a day selected by the Company which shall be
more than one Business Day but less than 60 Business Days prior to such Payment
Date.
["Redemption Amount" means ____________________________.]
["Redemption Price" means an amount per Debt Security equal to the
Redemption Amount plus accrued and unpaid interest, if any, to the date of
redemption. ]
"Register" means the Normal Unit Register and the Stripped Unit
Register.
"Registrar" means the Normal Unit Registrar and the Stripped Unit
Registrar.
"Remarketing Agent" has the meaning specified in Section 5.2.
"Remarketing Agreement" means the Remarketing Agreement, dated _____,
by and among the Company, the Remarketing Agent and the Agent.
"Remarketing Fee" has the meaning specified in Section 5.2.
"Remarketing Underwriting Agreement" has the meaning specified in the
Remarketing Agreement.
"Reorganization Event" has the meaning specified in Section 5.4(b).
7
"Reset Agent" means a nationally recognized investment banking firm
chosen by the Company to determine the Reset Rate. It is currently anticipated
that _________ will act in such capacity.
"Reset Announcement Date" means the tenth (10th) Business Day
immediately preceding the Purchase Contract Settlement Date.
"Reset Rate" means the interest rate per annum (to be determined by the
Reset Agent), equal to the sum of (X) the Reset Spread and (Y) the rate of
interest on the One-Month Treasury Xxxx in effect on the third Business Day
immediately preceding the Purchase Contract Settlement Date, that the Debt
Securities should bear in order for the Debt Securities to have an approximate
market value of -% of their aggregate principal amount on the third Business Day
immediately preceding the Purchase Contract Settlement Date[; provided, that the
Company may limit such Reset Spread to be no higher than - basis points (-%);]
and provided, further, that in the event of a Failed Remarketing, the Reset Rate
shall be the interest rate per annum in effect on the Business Day immediately
preceding the Purchase Contract Settlement Date.
"Reset Spread" means a spread amount to be determined by the Reset
Agent on the tenth (10th) Business Day immediately preceding the Purchase
Contract Settlement Date.
"Responsible Officer," when used with respect to the Agent, means any
officer of the Agent assigned by the Agent to administer its corporate trust
matters.
"Security" means a Normal Unit or a Stripped Unit.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means $ ___.
"Stripped Unit" means the collective rights and obligations of a holder
of a Stripped Units Certificate in respect of a ____th undivided beneficial
interest in a Treasury Security, subject in each case to the Pledge thereof, and
the related Purchase Contract.
"Stripped Unit Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Stripped Units specified
on such certificate.
"Stripped Unit Register" and "Stripped Unit Registrar" have the
respective meanings specified in Section 3.5.
"Tax Event" means ________________________.
"Tax Event Redemption" means, if a Tax Event shall occur and be
continuing, the redemption of Debt Securities, in whole but not in part, at the
option of the Company on not less than 30 days or more than 60 days notice.
"Tax Event Redemption Date" means the date on which a Tax Event
Redemption is to occur.
8
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Purchase Contract Settlement Date, a
judgment, decree or court order shall have been entered granting relief under
the Bankruptcy Code, adjudicating the Company to be insolvent, or approving as
properly filed a petition seeking reorganization or liquidation of the Company
or any other similar applicable law, and, unless such judgment, decree or order
shall have been entered within 60 days prior to the Purchase Contract Settlement
Date, such decree or order shall have continued undischarged and unstayed for a
period of 60 days; or (ii) a judgment, decree or court order for the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the winding up or liquidation of its
affairs, shall have been entered, and, unless such judgment, decree or order
shall have been entered within 60 days prior to the Purchase Contract Settlement
Date, such judgment, decree or order shall have continued undischarged and
unstayed for a period of 60 days, or (iii) at any time on or prior to the
Purchase Contract Settlement Date, the Company shall file a petition for relief
the Bankruptcy Code, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking reorganization
or liquidation under such law or any other similar applicable law, or shall
consent to the filing of any such petition, or shall consent to the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of it or of its property, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due.
"Threshold Appreciation Price" has the meaning specified in Section
5.1.
"Threshold Depreciation Price" has the meaning specified in Section
5.1.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 5.1.
"Treasury Portfolio" means _________.
"Treasury Security" means __________.
"Underwriting Agreement" means the Underwriting Agreement, dated
__________, between the Company and ______________.
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president."
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action under any
provision of this Agreement, the Company shall furnish to the Agent an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with and, if
requested by the Agent, an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been complied with,
except that in
9
the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that the individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or
she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
10
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Agent and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Normal Unit
Register or the Stripped Unit Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Agent or the
Company in reliance thereon, whether or not notation of such action is made upon
such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Normal Units and the Outstanding Stripped Units, as
the case may be, on such record date, and no other Holders, shall be entitled to
take the relevant action with respect to the Normal Units or the Stripped Units,
as the case may be, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite number of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Securities in the manner set forth in Section 1.6.
11
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Agent in writing, and to each Holder of Securities in the manner
set forth in Section 1.6, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the Company shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
Section 1.5. Notices.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Agreement to
be made upon, given or furnished to, or filed with:
(1) the Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Agent at [The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New
York, New York 10286, Attention: Corporate Trust Administration,] or at
any other address previously furnished in writing by the Agent to the
Holders and the Company; or
(2) the Company by the Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Company at DTE Energy Company, 0000 0xx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: ___________, or at any other address previously
furnished in writing to the Agent by the Company; or
(3) the Collateral Agent by the Agent, the Company or any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed
in writing and personally delivered or mailed, first-class postage
prepaid, addressed to the Collateral Agent at [The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, Attention:
Corporate Trust Administration,] or at any other address previously
furnished in writing by the Collateral Agent to the Agent, the Company
and the Holders.
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall
12
affect the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Agent, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders from
time to time shall be beneficiaries of this Agreement and shall be bound by all
of the terms and conditions hereof and of the Securities evidenced by their
Certificates by their acceptance of delivery of such Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities 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.
Section 1.12. Legal Holidays.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, then (notwithstanding any other provision of this Agreement, the
Normal Unit Certificates or the Stripped Unit Certificates), the Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
13
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office for inspection by any
Holder.
ARTICLE II
CERTIFICATE FORMS
Section 2.1. Forms of Certificates Generally.
The Normal Unit Certificates (including the form of Purchase Contract
forming part of the Normal Units evidenced thereby) shall be in substantially
the form set forth in Exhibit A hereto, with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Normal Units are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Normal Unit Certificates, as evidenced by their execution
of the Normal Unit Certificates.
The definitive Normal Unit Certificates shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Normal Unit
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
The Stripped Unit Certificates (including the form of Purchase
Contracts forming part of the Stripped Units evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Stripped Units may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Stripped Unit Certificates, as evidenced by their
execution of the Stripped Unit Certificates.
The definitive Stripped Unit Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Stripped Unit Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND
14
IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF.
THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Section 2.2. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the Normal
Units shall be in substantially the form set forth on the form of the Normal
Unit Certificates.
The form of the Agent's certificate of authentication of the Stripped
Units shall be in substantially the form set forth on the form of the Stripped
Unit Certificates.
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms; Denominations.
The aggregate number of Normal Units evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to _______ (_______ if the Underwriters' over-allotment option pursuant
to the Underwriting Agreement is exercised in full), except for Certificates
authenticated, executed and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Certificates pursuant to Section 3.4, 3.5,
3.10, 3.13, 3.14, 5.7 or 8.5. Stripped Units will be issued only in the manner
described in Section 3.13 hereof.
The Certificates shall be issuable only in registered form and only in
denominations of a single Normal Unit or Stripped Unit and any integral multiple
thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Normal Unit Certificate shall evidence the number of Normal Units
specified therein, with each such Normal Unit representing the ownership by the
Holder thereof of a beneficial interest in a Debt Security or the Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, subject to the
Pledge of such Debt Security or the Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder thereof and the Company
under one Purchase Contract. The Agent as attorney-in-fact for, and on behalf
of, the Holder of each Normal Unit shall pledge, pursuant to the Pledge
Agreement, the Debt Security or the Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, forming a part of such Normal Unit, to
the Collateral Agent and grant to the Collateral Agent a security interest in
the right, title, and interest of such Holder in such Debt Security or the
Applicable Ownership Interest in the Treasury Portfolio, as the case may be, for
the benefit of the Company, to secure the obligation of the Holder under each
Purchase Contract to purchase the Common Stock of the Company. Prior to the
purchase of Common Stock under each Purchase Contract, the Purchase Contracts
shall not entitle the Holders of Normal Unit Certificates to any of the rights
of a holder
15
of Common Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as stockholders
in respect of the meetings of stockholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as
stockholders of the Company.
Each Stripped Unit Certificate shall evidence the number of Stripped
Units specified therein, with each such Stripped Unit representing the ownership
by the Holder thereof of a ___th undivided beneficial interest in a Treasury
Security, subject to the Pledge of such interest in such Treasury Security by
such Holder pursuant to the Pledge Agreement, and the rights and obligations of
the Holder thereof and the Company under one Purchase Contract. Prior to the
purchase of Common Stock under each Purchase Contract, the Purchase Contracts
shall not entitle the Holders of Stripped Unit Certificates to any of the rights
of a holder of Common Stock, including, without limitation, the right to vote or
receive any dividends or other payments or to consent or to receive notice as
stockholders in respect of the meetings of stockholders or for the election of
directors of the Company or for any other matter, or any other rights whatsoever
as stockholders of the Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Certificates executed by the Company to the
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Certificates, and the
Agent in accordance with such Issuer Order shall authenticate, execute on behalf
of the Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by the
Chairman of the Board, the Vice Chairman, the President, the Chief Financial
Officer, the Chief Administrative Officer, General Counsel, Secretary or any
Vice President (or other officer performing similar functions) of the Company
and delivered to the Agent. The signature of any of these officers on the
Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until
such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized signatory of the Agent, as such Holder's
attorney-in-fact. Such signature by an authorized signatory of the Agent shall
be conclusive evidence that the Holder of such Certificate has entered into the
Purchase Contracts evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by
16
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holders, and deliver, in lieu of such definitive Certificates,
temporary Certificates which are in substantially the form set forth in Exhibit
A or Exhibit B hereto, as the case may be, with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Normal Units or Stripped Units are listed, or
as may, consistently herewith, be determined by the officers of the Company
executing such Certificates, as evidenced by their execution of the
Certificates.
If temporary Certificates are issued, the Company will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Company shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and denominations
and evidencing a like number of Normal Units or Stripped Units, as the case may
be, as the temporary Certificate or Certificates so surrendered. Until so
exchanged, the temporary Certificates shall in all respects evidence the same
benefits and the same obligations with respect to the Normal Units or Stripped
Units, as the case may be, evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register (the
"Normal Unit Register") in which, subject to such reasonable regulations as it
may prescribe, the Agent shall provide for the registration of Normal Unit
Certificates and of transfers of Normal Unit Certificates (the Agent, in such
capacity, the "Normal Unit Registrar") and a register (the "Stripped Unit
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of the Stripped Unit Certificates
and transfers of Stripped Unit Certificates (the Agent, in such capacity, the
"Stripped Unit Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, like
tenor, and evidencing a like number of Normal Units or Stripped Units, as the
case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Normal Units or Stripped Units, as
17
the case may be, upon surrender of the Certificates to be exchanged at the
Corporate Trust Office. Whenever any Certificates are so surrendered for
exchange, the Company shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange
of a Certificate shall evidence the ownership of the same number of Normal Units
or Stripped Units, as the case may be, and be entitled to the same benefits and
subject to the same obligations, under this Agreement as the Normal Units or
Stripped Units, as the case may be, evidenced by the Certificate surrendered
upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer
or for exchange shall (if so required by the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Agent duly executed, by the Holder thereof or its attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.6 and
8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any Certificate
presented or surrendered for registration of transfer or for exchange on or
after the Business Day immediately preceding the earlier of the Purchase
Contract Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Agent shall (i) if the Purchase Contract Settlement Date
has occurred, deliver the number of Common Stock issuable in respect of the
Purchase Contracts forming a part of the Securities evidenced by such
Certificate, (ii) in the case of Normal Units, if a Termination Event shall have
occurred prior to the Purchase Contract Settlement Date, transfer the aggregate
Stated Amount of the Debt Securities or the Treasury Portfolio, as applicable,
evidenced thereby, or (iii) in the case of Stripped Units, if a Termination
Event shall have occurred prior to the Purchase Contract Settlement Date,
transfer the Treasury Securities evidenced thereby, in each case subject to the
applicable conditions and in accordance with the applicable provisions of
Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of
one or more, fully registered Global Certificates, to be delivered to the
Depositary by, or on behalf of, the Company. Such Global Certificate shall
initially be registered on the books and records of the Company in the name of
Cede & Co., the nominee of the Depositary, and no Beneficial Owner will receive
a definitive Certificate representing such Beneficial Owner's interest in such
Global Certificate, except as provided in Section 3.9. The Agent shall enter
into an agreement with the
18
Depositary if so requested by the Company. Unless and until definitive, fully
registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including receiving approvals, votes or consents
hereunder) as the Holder of the Securities and the sole holder of the Global
Certificate(s) and shall have no obligation to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.6 conflict with
any other provisions of this Agreement, the provisions of this Section 3.6 shall
control; and
(d) the rights of the Beneficial Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants. The Clearing Agency will make book-entry transfers
among Clearing Agency Participants and receive and transmit interest payments on
the Debt Securities to such Clearing Agency Participants.
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is required to
be given under this Agreement, the Company or the Company's agent shall give
such notices and communications to the Holders and, with respect to any
Securities registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
Section 3.9. Definitive Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance pursuant to
Section 3.8, (ii) the Company elects to terminate the book-entry system through
the Clearing Agency with respect to the Securities, or (iii) there shall have
occurred and be continuing a default by the Company in respect of its
obligations under one or more Purchase Contracts, then upon surrender of the
Global Certificates representing the Book-Entry Interests with respect to the
Securities by the Clearing Agency, accompanied by registration instructions, the
Company shall cause definitive Certificates to be delivered to Beneficial Owners
in accordance with the instructions of the Clearing Agency. The Company shall
not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be protected in relying on, such instructions.
19
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Agent, the Company
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, a new
Certificate at the cost of the Holder, evidencing the same number of Normal
Units or Stripped Units, as the case may be, and bearing a Certificate number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) such security or indemnity at the cost of the Holder as may be required by
them to hold each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Agent that such Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen
Certificate, a new Certificate, evidencing the same number of Normal Units or
Stripped Units, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Certificate on or after the Business Day immediately preceding the earlier of
the Purchase Contract Settlement Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable conditions
specified above in this Section and receipt of appropriate registration or
transfer instructions from such Holder, the Agent shall (i) if the Purchase
Contract Settlement Date has occurred, deliver the number of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Securities
evidenced by such Certificate, or (ii) if a Termination Event shall have
occurred prior to the Purchase Contract Settlement Date, transfer the Debt
Securities , the appropriate Applicable Ownership Interest in the Treasury
Portfolio or the Treasury Securities, as the case may be, evidenced thereby, in
each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Upon the issuance of any new Certificate under this Section, the
Company and the Agent may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Agent)
connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
20
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer,
the Company and the Agent, and any agent of the Company or the Agent, may treat
the Person in whose name such Certificate is registered as the owner of the
Normal Units or Stripped Units evidenced thereby, for the purpose of receiving
interest on the Debt Securities, if declared, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any interest on
the Debt Securities shall be overdue and notwithstanding any notice to the
contrary, and neither the Company nor the Agent, nor any agent of the Company or
the Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing herein shall prevent the Company, the Agent or any agent of the Company
or the Agent, from giving effect to any written certification, proxy or other
authorization furnished by any Clearing Agency (or its nominee), as a Holder,
with respect to such Global Certificate or impair, as between such Clearing
Agency and owners of beneficial interests in such Global Certificate, the
operation of customary practices governing the exercise of rights of such
Clearing Agency (or its nominee) as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of Common Stock on or after
the Purchase Contract Settlement Date, upon the transfer of Debt Securities ,
the appropriate Applicable Ownership Interest in the Treasury Portfolio or
Treasury Securities, as the case may be, after the occurrence of a Termination
Event or pursuant to an Early Settlement, or upon the registration of a transfer
or exchange of a Security, or a Collateral Substitution or the re-establishment
of a Normal Unit shall, if surrendered to any Person other than the Agent, be
delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Certificates previously authenticated, executed and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Certificates so delivered shall, upon Issuer Order, be promptly cancelled by the
Agent. No Certificates shall be authenticated, executed on behalf of the Holder
and delivered in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement. All
cancelled Certificates held by the Agent shall be disposed of by the Agent in
accordance with its customary practices.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
Section 3.13. Establishment or Reestablishment of Stripped Units.
A Holder may separate the Debt Securities or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as applicable, from the related
Purchase Contracts in respect of a Normal Unit by substituting for such Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, Treasury Securities in an aggregate principal
amount [at maturity] equal to the aggregate Stated Amount of such Debt
Securities or
21
for the aggregate Stated Amount of the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as applicable (a "Collateral Substitution"), at any time from and
after the date of this Agreement and on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date and on or prior to
the second Business Day immediately preceding the Purchase Contract Settlement
Date in the case of the appropriate Applicable Ownership Interest in the
Treasury Portfolio, in each case by (a) depositing with the Collateral Agent
Treasury Securities having an aggregate principal amount [at maturity] equal to
the aggregate Stated Amount of the Debt Securities comprising part of such
Normal Unit or for the aggregate Stated Amount of the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio comprising part of such Normal Unit, as the case may
be, and (b) (i) by delivering cash in an amount equal to the excess of the
Contract Adjustment Payments that would have accrued since the last Payment Date
through the date of substitution on the Stripped Units being created by the
holder, over the Contract Adjustment Payments that have accrued over the same
time period on the related Normal Units, which amount the Agent shall promptly
remit to the Company, and (ii) transferring the related Normal Unit to the Agent
accompanied by a notice to the Agent, substantially in the form of Exhibit D
hereto, stating that the Holder has transferred the relevant amount of Treasury
Securities to the Collateral Agent and requesting that the Agent instruct the
Collateral Agent to release the Debt Securities or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, underlying
such Normal Unit, whereupon the Agent shall promptly give such instruction to
the Collateral Agent, substantially in the form of Exhibit C hereto. Upon
receipt of the Treasury Securities described in clause (a) above and the
instruction described in clause (b) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will release to the Agent, on behalf of
the Holder, Debt Securities or the appropriate Applicable Ownership Interest in
the Treasury Portfolio, as the case may be, having a corresponding aggregate
Stated Amount of such Debt Securities or aggregate Stated Amount of the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, from the
Pledge, free and clear of the Company's security interest therein, and upon
receipt thereof the Agent shall promptly:
(i) cancel the related Normal Unit;
(ii) transfer the related Debt Securities or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Stripped Unit Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Normal Unit.
Holders who elect to separate the Debt Securities or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
from the related Purchase Contract and to substitute Treasury Securities for
such Debt Securities or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, shall be responsible for any fees or
expenses payable to the Collateral Agent for its services as Collateral Agent in
respect of the substitution, and the Company shall not be responsible for any
such fees or expenses.
22
Holders may make Collateral Substitutions (i) only in integral
multiples of Normal Units if Debt Securities are being substituted by Treasury
Securities, or (ii) only in integral multiples of Normal Units if the
appropriate Applicable Ownership Interests of the Treasury Portfolio are being
substituted by Treasury Securities.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the Normal Units or fails
to deliver a Normal Unit Certificate to the Agent after depositing Treasury
Securities with the Collateral Agent, the Debt Securities or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
constituting a part of such Normal Unit, and any interest on such Debt Security
or distributions with respect to the Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, shall be held in the name of the Agent
or its nominee in trust for the benefit of such Holder, until such Normal Units
are so transferred or the Normal Unit Certificate is so delivered, as the case
may be, or, with respect to a Normal Unit Certificate, such Holder provides
evidence satisfactory to the Company and the Agent that such Normal Unit
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Agent and the Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a Normal Unit remains in effect, such Normal Unit shall not
be separable into its constituent parts, and the rights and obligations of the
Holder in respect of the Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, and Purchase Contract
comprising such Normal Unit may be acquired, and may be transferred and
exchanged, only as a Normal Unit.
Section 3.14. Establishment or Reestablishment of Normal Units.
A Holder of a Stripped Unit may create or recreate Normal Units at any
time on or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date on or prior to the second Business Day immediately
preceding the Purchase Contract Settlement Date, if a Tax Event Redemption has
occurred, in each case by (a) depositing with the Collateral Agent Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, having an aggregate principal amount in the case
of Debt Securities, or an aggregate Stated Amount of the appropriate Applicable
Ownership Interest (as defined in clause (A) of the definition of such term) of
the Treasury Portfolio, as the case may be, equal to the aggregate principal
amount at maturity of the Pledged Treasury Securities comprising part of the
Stripped Unit and (b) transferring the related Stripped Unit to the Agent
accompanied by a notice to the Agent, substantially in the form of Exhibit D
hereto, stating that the Holder has transferred the relevant amount of Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, to the Collateral Agent and requesting that the
Agent instruct the Collateral Agent to release the Treasury Securities
underlying such Stripped Unit, whereupon the Agent shall promptly give such
instruction to the Collateral Agent, substantially in the form of Exhibit C
hereto. Upon receipt of the Debt Securities or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, described in
clause (a) above and the instruction described in clause (b) above, in
accordance with the terms of the Pledge Agreement, the Collateral Agent will
effect the release of the Treasury Securities having a corresponding aggregate
principal amount at maturity from the Pledge to the Agent free and
23
clear of the Company's security interest therein, and upon receipt thereof the
Agent shall promptly:
(i) cancel the related Stripped Unit;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Normal Unit Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as
were evidenced by the cancelled Stripped Unit.
Holders of Stripped Units may establish or reestablish Normal Units in
integral multiples of ___ Stripped Units for ___ Debt Securities only.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Stripped Unit remains in effect, such Stripped Unit shall
not be separable into its constituent parts and the rights and obligations of
the Holder of such Stripped Unit in respect of the Treasury Security and
Purchase Contract comprising such Stripped Unit may be acquired, and may be
transferred and exchanged only as a Stripped Unit.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to the
Agent of the Debt Securities , the appropriate Applicable Ownership Interest in
the Treasury Portfolio or the Treasury Securities, as the case may be,
underlying the Normal Units and the Stripped Units pursuant to the terms of the
Pledge Agreement, the Agent shall request transfer instructions with respect to
such Debt Securities or the appropriate Applicable Ownership Interest in the
Treasury Portfolio or Treasury Securities, as the case may be, from each Holder
by written request mailed to such Holder at its address as it appears in the
Normal Unit Register or the Stripped Unit Register, as the case may be. Upon
book-entry transfer of the Normal Units or Stripped Units or delivery of a
Normal Unit Certificate or Stripped Unit Certificate to the Agent with such
transfer instructions, the Agent shall transfer the Debt Securities, the
Treasury Portfolio or Treasury Securities, as the case may be, underlying such
Normal Units or Stripped Units, as the case may be, to such Holder by book-entry
transfer, or other appropriate procedures, in accordance with such instructions.
In the event a Holder of Normal Units or Stripped Units fails to effect such
transfer or delivery, the Debt Securities, the appropriate Applicable Ownership
Interest in the Treasury Portfolio or Treasury Securities, as the case may be,
underlying such Normal Units or Stripped Units, as the case may be, and any
distributions thereon, shall be held in the name of the Agent or its nominee in
trust for the benefit of such Holder, until such Normal Units or Stripped Units
are transferred or the Normal Unit Certificate or Stripped Unit Certificate is
surrendered or such Holder provides satisfactory evidence that such Normal Unit
Certificate or Stripped Unit Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Agent and the Company.
In the case of the Treasury Portfolio or any Treasury Securities, the Agent may
dispose of the subject securities for cash and pay the applicable portion of
such cash to the Holders in lieu of such Holders' Applicable Ownership Interest
in such Treasury Portfolio, or any Treasury Securities, where such Holder would
otherwise have been entitled to receive less than $1,000 of any such security.
24
Section 3.16. No Consent To Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company, its
trustee in bankruptcy, receiver, liquidator or a person or entity performing
similar functions, its trustee in the event that the Company becomes a debtor
under the Bankruptcy Code or subject to other similar state or federal law
providing for reorganization or liquidation.
Section 3.17. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use), and, if so, the Agent shall use CUSIP numbers in notices as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Agent of any
change in the CUSIP numbers.
ARTICLE IV
THE DEBT SECURITIES
Section 4.1. Payment of Interest; Rights to Interest Preserved; Interest
Rate Reset; Notice.
Interest on any Debt Security or distribution with respect to the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, which is paid on any Payment Date shall, subject to receipt thereof by
the Agent from the Collateral Agent as provided by the terms of the Pledge
Agreement, be paid to the Person in whose name the Normal Unit Certificate (or
one or more Predecessor Normal Unit Certificates) of which such Debt Security or
the appropriate Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, is a part is registered at the close of business on the Record Date
for such Payment Date.
Each Normal Unit Certificate evidencing Debt Securities delivered under
this Agreement upon registration of transfer of or in exchange for or in lieu of
any other Normal Unit Certificate shall carry the rights to accrued and unpaid
interest, and to accrue interest, which were carried by the Debt Securities
underlying such other Normal Unit Certificate.
In the case of any Normal Units with respect to which Cash Settlement
of the underlying Purchase Contract is effected on the Business Day immediately
preceding the Purchase Contract Settlement Date pursuant to prior notice, or
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, or with respect to which a Collateral
Substitution is effected, in each case on a date that is after any Record Date
and on or prior to the next succeeding Payment Date, interest on the Debt
Securities or distribution with respect to the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, underlying such Normal
Units otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such interest or distribution shall, subject to receipt
thereof by the Agent, be payable to the Person in whose name the Normal Unit
Certificate (or one or more Predecessor
25
Normal Unit Certificates) was registered at the close of business on the Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Normal Units with respect to which Cash Settlement
or Early Settlement of the underlying Purchase Contract is effected on the
Business Day immediately preceding the Purchase Contract Settlement Date or an
Early Settlement Date, as the case may be, or with respect to which a Collateral
Substitution has been effected, interest on the related Debt Securities or
distributions with respect to the appropriate Applicable Ownership Interest in
the Treasury Portfolio, as the case may be, that would otherwise be payable
after the Purchase Contract Settlement Date or Early Settlement Date shall not
be payable hereunder to the Holder of such Normal Units; provided, however, that
to the extent that such Holder continues to hold the separated Debt Securities
that formerly comprised a part of such Holder's Normal Units, such Holder shall
be entitled to receive the interest on such separated Debt Securities.
The applicable Coupon Rate on the Debt Securities on and after the
Purchase Contract Settlement Date will be reset on the third Business Day
immediately preceding the Purchase Contract Settlement Date to the Reset Rate
(such Reset Rate to be in effect on and after the Purchase Contract Settlement
Date). On the Reset Announcement Date, the Reset Spread and [the One-Month
Treasury Xxxx] to be used to determine the Reset Rate will be announced by the
Company. On the Business Day immediately following the Reset Announcement Date,
the Debt Securities Holders will be notified of such Reset Spread [and the
One-Month Treasury Xxxx] by the Company. Such notice shall be sufficiently given
to Holders of Debt Securities if published in an Authorized Newspaper in The
City of New York.
Not less than 7 calendar days nor more than 15 calendar days prior to
the Reset Announcement Date, the Company will notify DTC or its nominee (or any
successor Clearing Agency or its nominee) by first-class mail, postage prepaid,
to notify the Beneficial Owners or Clearing Agency Participants holding Normal
Units or Stripped Units, of such Reset Announcement Date and the procedures to
be followed by such Holders of Normal Units who intend to settle their
obligation under the Purchase Contract with separate cash on the Purchase
Contract Settlement Date.
Section 4.2. Notice and Voting.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Debt
Securities pledged with the Collateral Agent but only to the extent instructed
by the Holders as described below. Upon receipt of notice of any meeting at
which holders of Debt Securities are entitled to vote or upon any solicitation
of consents, waivers or proxies of holders of Debt Securities, the Agent shall,
as soon as practicable thereafter, mail to the Holders of Normal Units a notice
(a) containing such information as is contained in the notice or solicitation,
(b) stating that each Holder on the record date set by the Agent therefor
(which, to the extent possible, shall be the same date as the record date for
determining the holders of Debt Securities entitled to vote) shall be entitled
to instruct the Agent as to the exercise of the voting rights pertaining to the
Debt Securities underlying their Normal Units and (c) stating the manner in
which such instructions may be given. Upon the written request of the Holders of
Normal Units on such record date, the Agent shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum number of Debt Securities as to which
any particular voting
26
instructions are received. In the absence of specific instructions from the
Holder of a Normal Unit, the Agent shall abstain from voting the Debt Security
underlying such Normal Unit. The Company hereby agrees, if applicable, to
solicit Holders of Normal Units to timely instruct the Agent in order to enable
the Agent to vote such Debt Securities.
Section 4.3. Tax Event Redemption.
Upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Redemption Price payable on the Tax Event
Redemption Date with respect to the Applicable Principal Amount of Debt
Securities shall be delivered to the Collateral Agent in exchange for the
Pledged Debt Securities. Pursuant to the terms of the Pledge Agreement, the
Collateral Agent will apply an amount equal to the Redemption Amount of such
Redemption Price to purchase on behalf of the Holders of Normal Units the
Treasury Portfolio and promptly remit the remaining portion of such Redemption
Price to the Agent for payment to the Holders of such Normal Units. The Treasury
Portfolio will be substituted for the Pledged Debt Securities, and will be held
by the Collateral Agent in accordance with the terms of the Pledge Agreement to
secure the obligation of each Holder of a Normal Unit to purchase the Common
Stock of the Company under the Purchase Contract constituting a part of such
Normal Unit. Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Normal Units and the
Collateral Agent shall have such security interests, rights and obligations with
respect to the Treasury Portfolio as the Holder of Normal Units and the
Collateral Agent had in respect of the Debt Security subject to the Pledge
thereof as provided in Articles II, III, IV, V, and VI of the Pledge Agreement,
and any reference herein to the Debt Securities shall be deemed to be reference
to such Treasury Portfolio. The Company may cause to be made in any Normal Units
thereafter to be issued such change in phraseology and form (but not in
substance) as may be appropriate to reflect the liquidation of the Trust and the
substitution of the Treasury Portfolio for Debt Securities as collateral.
[Section 4.4. Consent To Treatment For Tax Purposes.
Each Holder of Normal Units or Stripped Units, by its acceptance
thereof, covenants and agrees to treat itself as the owner, for United States
federal, state and local income and franchise tax purposes, of (i) the related
Debt Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, in the case of the Normal Units, or (ii) the Treasury Securities, in
the case of the Stripped Units. Each Holder of Normal Units, by its acceptance
thereof, further covenants and agrees to treat the Debt Securities as
indebtedness of the Company for United States federal, state and local income
and franchise tax purposes.]
ARTICLE V
THE PURCHASE CONTRACTS
Section 5.1. Purchase of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has occurred
in accordance with Section 5.7 hereof, obligate the Holder of the related
Security to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount (the
27
"Purchase Price"), a number of newly issued shares of Common Stock equal to the
Settlement Rate unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part. The "Settlement Rate" is equal to (a) if
the Applicable Market Value (as defined below) is equal to or greater than $-
(the "Threshold Appreciation Price"), - Common Stock per Purchase Contract, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price,
but is greater than $- (the "Threshold Depreciation Price"), the number of
Common Stock equal to the Stated Amount divided by the Applicable Market Value
and (c) if the Applicable Market Value is less than or equal to Threshold
Depreciation Price, - Common Stock per Purchase Contract, in each case subject
to adjustment as provided in Section 5.4 (and in each case rounded upward or
downward to the nearest 1/10,000th of a share). As provided in Section 5.8, no
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "Closing Price" of the shares of Common Stock on any date of
determination means the closing sale price (or, if no closing price is reported,
the last reported sale price) of the Common Stock on the New York Stock Exchange
(the "NYSE") on such date or, if the shares of Common Stock are not listed for
trading on the NYSE on any such date, as reported in the composite transactions
for the principal United States securities exchange on which the shares of
Common Stock are so listed, or if the shares of Common Stock are not so listed
on a United States national or regional securities exchange, as reported by The
Nasdaq Stock Market, or, if the shares of Common Stock are not so reported, the
last quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if such
bid price is not available, the market value of the Common Stock on such date as
of 4:00 p.m., New York City time, as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company.
A "Trading Day" means a day on which the shares of Common Stock (A) are
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) have
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Normal Unit or a Stripped Unit, by its acceptance
thereof, irrevocably authorizes the Agent to enter into and perform the related
Purchase Contract on its behalf as its attorney-in-fact (including the execution
of Certificates on behalf of such Holder), agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under such
Purchase Contracts, and consents to the provisions hereof, irrevocably
authorizes the Agent as its attorney-in-fact to enter into and perform the
Pledge Agreement on its behalf as its attorney-in-fact, and consents to and
agrees to be bound by the Pledge of the Debt Securities, the Treasury Portfolio
or the Treasury Securities pursuant to the Pledge Agreement; provided that upon
a Termination Event, the rights of the Holder of such Security under the
Purchase Contract may be enforced without regard to any other rights or
obligations. Each Holder of a Normal Unit or a Stripped Unit, by its acceptance
thereof, further covenants and agrees, that, to the extent and
28
in the manner provided in Section 5.2 and the Pledge Agreement, but subject to
the terms thereof, payments in respect of the Stated Amount of the Debt
Securities or the Proceeds of the Treasury Securities or the Treasury Portfolio
on the Purchase Contract Settlement Date shall be paid by the Collateral Agent
to the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Upon registration of transfer of a Certificate, the transferee shall be
bound (without the necessity of any other action on the part of such
transferee), under the terms of this Agreement, the Purchase Contracts
underlying such Certificate and the Pledge Agreement and the transferor shall be
released from the obligations under this Agreement, the Purchase Contracts
underlying the Certificates so transferred and the Pledge Agreement. The Company
covenants and agrees, and each Holder of a Certificate, by its acceptance
thereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
Section 5.2. Payment of Purchase Price.
(a) (i) Unless a Holder settles the underlying Purchase Contract
through the early delivery of cash to the Agent in the manner described in
Section 5.7, each Holder of a Normal Unit must notify the Agent by use of a
notice in substantially the form of Exhibit E hereto of its intention to pay in
cash ("Cash Settlement") the Purchase Price for the Common Stock to be purchased
pursuant to a Purchase Contract. Such notice shall be made on or prior to 5:00
p.m., New York City time, on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date. The Agent shall promptly notify the
Collateral Agent of the receipt of such a notice from a Holder intending to make
a Cash Settlement.
(ii) A Holder of a Normal Unit who has so notified the Agent of its
intention to make a Cash Settlement is required to pay the Purchase Price to the
Collateral Agent prior to 11:00 a.m., New York City time, on the Business Day
immediately preceding the Purchase Contract Settlement Date in lawful money of
the United States by certified or cashiers' check or wire transfer, in each case
in immediately available funds payable to or upon the order of the Company. Any
cash received by the Collateral Agent will be invested promptly by the
Collateral Agent in Permitted Investments and paid to the Company on the
Purchase Contract Settlement Date in settlement of the Purchase Contract in
accordance with the terms of this Agreement and the Pledge Agreement. Any funds
received by the Collateral Agent in respect of the investment earnings from the
investment in such Permitted Investments will be distributed to the Agent when
received for payment to the Holder.
(iii) If a Holder of a Normal Unit fails to notify the Agent of its
intention to make a Cash Settlement in accordance with paragraph (a)(i) above,
such failure shall constitute an event of default and the Holder shall be deemed
to have consented to the disposition of the pledged Debt Securities pursuant to
the remarketing as described in paragraph (b) below. If a Holder of a Normal
Unit does notify the Agent as provided in paragraph (a)(i) above of its
intention to pay the Purchase Price in cash, but fails to make such payment as
required by paragraph (a)(ii) above, such failure shall also constitute a
default; however, the Debt Securities of such a Holder will not be remarketed
but instead the Collateral Agent, for the benefit of the Company, will exercise
its rights as a secured party with respect to such Debt Securities, including
those rights specified in paragraph (c) below.
29
(b) In order to dispose of the Debt Securities of Normal Units Holders
who have not notified the Agent of their intention to effect a Cash Settlement
as provided in paragraph (a)(i) above, the Company shall engage a nationally
recognized investment bank (the "Remarketing Agent") pursuant to the Remarketing
Agreement to sell such Debt Securities. In order to facilitate the remarketing,
the Agent shall notify, by 10:00 a.m., New York City time, on the fourth
Business Day immediately preceding the Purchase Contract Settlement Date, the
Remarketing Agent of the aggregate number of Debt Securities to be remarketed.
Concurrently, the Collateral Agent, pursuant to the terms of the Pledge
Agreement, will present for remarketing such Debt Securities to the Remarketing
Agent. Upon receipt of such notice from the Agent and such Debt Securities from
the Collateral Agent, the Remarketing Agent will, on the third Business Day
immediately preceding the Purchase Contract Settlement Date, use its reasonable
efforts to remarket such Debt Securities on such date at a price of
approximately -% (but not less than -%) of the aggregate principal amount of
such Debt Securities, plus accrued and unpaid interest, if any, thereon. After
deducting as the remarketing fee ("Remarketing Fee") an amount not exceeding -
basis points (-%) of the aggregate stated liquidation amount of the remarketed
Debt Securities from any amount of such proceeds in excess of the aggregate
principal amount of the remarketed Debt Securities plus accrued and unpaid
interest, if any, then the Remarketing Agent will remit the entire amount of the
proceeds from such remarketing to the Collateral Agent. Such portion of the
proceeds, equal to the aggregate principal amount of such Debt Securities, will
automatically be applied by the Collateral Agent, in accordance with the Pledge
Agreement to satisfy in full such Normal Units holders' obligations to pay the
Purchase Price for the Common Stock under the related Purchase Contracts on the
Purchase Contract Settlement Date. Any proceeds in excess of those required to
pay the Purchase Price and the Remarketing Fee will be remitted to the Agent for
payment to the Holders of the related Normal Units. Normal Units Holders whose
Debt Securities are so remarketed will not otherwise be responsible for the
payment of any Remarketing Fee in connection therewith. If, in spite of using
its reasonable efforts, the Remarketing Agent cannot remarket the related Debt
Securities of such Holders of Normal Units at a price not less then -% of the
aggregate principal amount of such Debt Securities plus accrued and unpaid
interest, if any, the remarketing will be deemed to have failed (a "Failed
Remarketing") and in accordance with the terms of the Pledge Agreement, the
Collateral Agent for the benefit of the Company will exercise its rights as a
secured party with respect to such Debt Securities, including those actions
specified in paragraph (c) below; provided, that if upon a Failed Remarketing
the Collateral Agent exercises such rights for the benefit of the Company with
respect to such Debt Securities, any accrued and unpaid interest on such Debt
Securities will become payable by the Company to the Agent for payment to the
Beneficial Owner of the Normal Units to which such Debt Securities relates. Such
payment will be made by the Company on or prior to 11 a.m., New York City time,
on the Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer in immediately available funds
payable to or upon the order of the Agent. The Company will cause a notice of
such Failed Remarketing to be published on the second Business Day immediately
preceding the Purchase Contract Settlement Date in an Authorized Newspaper in
The City of New York.
(c) With respect to any Debt Securities beneficially owned by Holders
who have elected Cash Settlement but failed to deliver cash as required in
(a)(ii) above, or with respect to Debt Securities which are subject to a Failed
Remarketing, the Collateral Agent for the benefit of the
30
Company reserves all of its rights as a secured party with respect thereto and,
subject to applicable law and paragraph (g) below, may, among other things, (i)
retain the Debt Securities in full satisfaction of the Holders obligations under
the Purchase Contracts or (ii) sell the Debt Securities in one or more public or
private sales.
(d) (i) Unless a Holder of Stripped Units settles the underlying
Purchase Contract through the early delivery of cash to the Agent in the manner
described in Section 5.7, each Holder of a Stripped Unit must notify the Agent
by use of a notice in substantially the form of Exhibit E hereto of its
intention to pay in cash the Purchase Price for the Common Stock to be purchased
pursuant to a Purchase Contract on or prior to 5:00 p.m., New York City time, on
the second Business Day immediately preceding the Purchase Contract Settlement
Date.
(ii) A Holder of a Stripped Unit who has so notified the Agent of
its intention to make a Cash Settlement in accordance with paragraph (d)(i)
above is required to pay the Purchase Price to the Collateral Agent prior to
11:00 a.m., New York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case in immediately
available funds payable to or upon the order of the Company. Any cash received
by the Collateral Agent will be invested promptly by the Collateral Agent in
specific Permitted Investments as directed in writing by the Company and paid to
the Company on the Purchase Contract Settlement Date in settlement of the
Purchase Contract in accordance with the terms of this Agreement and the Pledge
Agreement. Any funds received by the Collateral Agent in respect of the
investment earnings from the investment in such Permitted Investments will be
distributed to the Agent when received for payment to the Holder.
(iii) If a Holder of a Stripped Unit notifies the Agent of its
intention to make a Cash Settlement in accordance with paragraph (d)(i) above,
but fails to make such payment as required by paragraph (d)(ii) above, then upon
the maturity of the Pledged Treasury Securities or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, held by the
Collateral Agent on the Business Day immediately prior to the Purchase Contract
Settlement Date, the principal amount at maturity of the Treasury Securities or
the appropriate Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, received by the Collateral Agent will be invested promptly in
specific overnight Permitted Investments as directed in writing by the Company.
On the Purchase Contract Settlement Date, an amount equal to the Purchase Price
will be remitted to the Company as payment thereof without receiving any
instructions from the Holder. In the event the sum of the proceeds from the
related Pledged Treasury Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, and the investment
earnings earned from such investments is in excess of the aggregate Purchase
Price of the Purchase Contracts being settled thereby, the Collateral Agent will
distribute such excess to the Agent for the benefit of the Holder of the related
Stripped Unit when received.
(e) Any distribution to Holders of excess funds and interest described
above shall be payable at the office of the Agent in The City of New York
maintained for that purpose or, at the option of the Holder, by check mailed to
the address of the Person entitled thereto at such address as it appears on the
Register.
31
(f) Unless a Holder settles the underlying Purchase Contract through
the early delivery of cash to the Collateral Agent in the manner described
herein, the Company shall not be obligated to issue any Common Stock in respect
of a Purchase Contract or deliver any certificate therefor to the Holder unless
it shall have received payment in full of the Purchase Price for the Common
Stock to be purchased thereunder in the manner herein set forth.
Upon Cash Settlement of any Purchase Contract, (i) the Collateral Agent
will in accordance with the terms of the Pledge Agreement cause the Pledged Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, or the Pledged Treasury Securities underlying the
relevant Security to be released from the Pledge by the Collateral Agent free
and clear of any security interest of the Company and transferred to the Agent
for delivery to the Holder thereof or its designee as soon as practicable and
(ii) subject to the receipt thereof from the Collateral Agent, the Agent shall,
by book-entry transfer, or other appropriate procedures, in accordance with
instructions provided by the Holder thereof, transfer such Debt Securities or
the appropriate Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, or such Treasury Securities (or, if no such instructions are given
to the Agent by the Holder, the Agent shall hold such Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, or such Treasury Securities, and any interest payable thereon, in the
name of the Agent or its nominee in trust for the benefit of such Holder).
(g) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and are payable solely out of any Cash Settlement or
the proceeds of any Collateral Pledged to secure the obligations of the Holders
and in no event will Holders be liable for any deficiency between the proceeds
of Collateral disposition and the Purchase Price.
Section 5.3. Issuance of Common Stock.
Unless a Termination Event shall have occurred on or prior to the
Purchase Contract Settlement Date or an Early Settlement shall have occurred, on
the Purchase Contract Settlement Date, upon its receipt of payment in full of
the Purchase Price for the Common Stock purchased by the Holders pursuant to the
foregoing provisions of this Article and subject to Section 5.4(b), the Company
shall issue and deposit with the Agent, for the benefit of the Holders of the
Outstanding Securities, one or more certificates representing the newly issued
Common Stock registered in the name of the Agent (or its nominee) as custodian
for the Holders (such certificates for Common Stock, together with any dividends
or distributions for which a record date and payment date for such dividend or
distribution has occurred after the Purchase Contract Settlement Date, being
hereinafter referred to as the "Purchase Contract Settlement Fund") to which the
Holders are entitled hereunder. Subject to the foregoing, upon surrender of a
Certificate to the Agent on or after the Purchase Contract Settlement Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock which such
Holder is entitled to receive pursuant to the provisions of this Article Five
(after taking into account all Securities then held by such Holder) together
with cash in lieu of fractional shares as provided in Section 5.8 and any
dividends or distributions with respect to such shares constituting part of the
Purchase Contract Settlement Fund, but without any interest thereon, and the
Certificate so surrendered shall forthwith be cancelled. Such shares
32
shall be registered in the name of the Holder or the Holder's designee as
specified in the settlement instructions provided by the Holder to the Agent. If
any shares of Common Stock issued in respect of a Purchase Contract are to be
registered to a Person other than the Person in whose name the Certificate
evidencing such Purchase Contract is registered, no such registration shall be
made unless the Person requesting such registration has paid any transfer and
other taxes required by reason of such registration in a name other than that of
the registered Holder of the Certificate evidencing such Purchase Contract or
has established to the satisfaction of the Company that such tax either has been
paid or is not payable.
Section 5.4. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate, as in
effect at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at the time outstanding shall not include
shares held in the treasury of the Company but shall include any shares issuable
in respect of any scrip certificates issued in lieu of fractions of Common
Stock. The Company will not pay any dividend or make any distribution on Common
Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement of the Purchase
Contracts underlying such Securities) entitling them, for a period expiring
within 45 days after the record date for the determination of shareholders
entitled to receive such rights, options or warrants, to subscribe for or
purchase Common Stock at a price per share less than the Current Market Price
per share of Common Stock on the date fixed for the determination of
shareholders entitled to receive such rights, options or warrants (other than
pursuant to a dividend reinvestment plan), the Settlement Rate in effect at the
opening of business on the day following the date fixed for such determination
shall be increased by dividing such Settlement Rate by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such Current Market Price and the denominator of which shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include any shares issuable in respect of any
scrip certificates
33
issued in lieu of fractions of Common Stock. The Company shall not issue any
such rights, options or warrants in respect of Common Stock held in the treasury
of the Company.
(3) In case outstanding Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following the day upon which such
subdivision or split becomes effective shall be proportionately increased, and,
conversely, in case outstanding Common Stock shall each be combined into a
smaller number of shares of Common Stock, the Settlement Rate in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or reduction,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision, split or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness or
assets (including securities, but excluding any rights or warrants referred to
in paragraph (2) of this Section, any dividend or distribution paid exclusively
in cash and any dividend or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate in effect immediately prior to
the close of business on the date fixed for the determination of shareholders
entitled to receive such distribution by a fraction, the numerator of which
shall be the Current Market Price per share of Common Stock on the date fixed
for such determination less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator of which shall be such Current Market Price per share of Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in which this
paragraph (4) is applicable, paragraph (2) of this Section shall not be
applicable.
(5) In case the Company shall, (I) by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed in a Reorganization Event to which Section 5.4(b) applies or as part
of a distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (II) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution and in respect
of which no adjustment pursuant to this paragraph (5) or paragraph (6) of this
Section has been made and (III) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration payable in
respect of any tender or exchange offer by the Company or any of its
subsidiaries for all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of the distribution described in clause (I)
above and in respect of which no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made, exceeds 5% of the product of the
Current Market Price per share of Common Stock on the date for the determination
of holders of Common Stock entitled to receive such distribution times the
number of shares of Common Stock outstanding on such date, then, and in each
such case, immediately after the close of business on such date for
determination, the Settlement Rate shall be increased
34
so that the same shall equal the rate determined by dividing the Settlement Rate
in effect immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by a
fraction (i) the numerator of which shall be equal to the Current Market Price
per share of Common Stock on the date fixed for such determination less an
amount equal to the quotient of (x) the combined amount distributed or payable
in the transactions described in clauses (I), (II) and (III) above and (y) the
number of shares of Common Stock outstanding on such date for determination and
(ii) the denominator of which shall be equal to the Current Market Price per
share of Common Stock on such date for determination.
(6) In case (I) a tender or exchange offer made by the Company or any subsidiary
of the Company for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to shareholders (based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of Purchased Shares) of
an aggregate consideration having a fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) that combined together with (II) the aggregate of the cash
plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution), as of
the expiration of such tender or exchange offer, of consideration payable in
respect of any other tender or exchange offer, by the Company or any subsidiary
of the Company for all or any portion of the Common Stock expiring within the 12
months preceding the expiration of such tender or exchange offer and in respect
of which no adjustment pursuant to paragraph (5) of this Section or this
paragraph (6) has been made and (III) the aggregate amount of any distributions
to all holders of the Company's Common Stock made exclusively in cash within the
12 months preceding the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph (5) of this Section or this
paragraph (6) has been made, exceeds 5% of the product of the Current Market
Price per share of Common Stock as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender or exchange offer (as it
may be amended) times the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time, then, and in each such
case, immediately prior to the opening of business on the day after the date of
the Expiration Time, the Settlement Rate shall be adjusted so that the same
shall equal the rate determined by dividing the Settlement Rate immediately
prior to the close of business on the date of the Expiration Time by a fraction
(i) the numerator of which shall be equal to (A) the product of (I) the Current
Market Price per share of Common Stock on the date of the Expiration Time and
(II) the number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time less (B) the amount of cash plus the fair market
value (determined as aforesaid) of the aggregate consideration payable to
shareholders based on the transactions described in clauses (I), (II) and (III)
above (assuming in the case of clause (I) the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of Purchased Shares),
and (ii) the denominator of which shall be equal to the product of (A) the
Current Market Price per share of Common Stock as of the Expiration Time and (B)
the number of shares of Common Stock outstanding (including any tendered shares)
as of the Expiration Time less the number of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "Purchased Shares").
35
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any reclassification
upon a Reorganization Event to which Section 5.4(b) applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision, split or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
or split becomes effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such subdivision, split
or combination becomes effective" within the meaning of paragraph (3) of this
Section).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the 5 consecutive
Trading Days selected by the Company commencing not more than 30 Trading Days
before, and ending not later than, the earlier of the day in question and the
day before the "ex date" with respect to the issuance or distribution requiring
such computation. For purposes of this paragraph, the term "ex date", when used
with respect to any issuance or distribution, shall mean the first date on which
the Common Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate, shall be
calculated to the nearest 1/10,000th of a share of Common Stock (or if there is
not a nearest 1/10,000th of a share to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent therein; provided,
however, that any adjustments which by reason of this subparagraph are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. If an adjustment is made to the Settlement Rate pursuant
to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.4(a),
an adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of Settlement Rate
in Section 5.1 will apply on the Purchase Contract Settlement Date. Such
adjustment shall be made by multiplying the Applicable Market Value by a
fraction, the numerator of which shall be the Settlement Rate immediately after
such adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10)
of this Section 5.4(a) and the denominator of which shall be the Settlement Rate
immediately before such adjustment; provided, however, that if such adjustment
to the Settlement Rate is required to be made pursuant to the occurrence of any
of the events contemplated by paragraph (1) (2) (3) (4) (5) (7) or (10) of this
Section 5.4(a) during the period taken into consideration for determining the
Applicable Market Value, appropriate and customary adjustments shall be made to
the Settlement Rate.
(10) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as it considers to be
advisable in order to avoid or diminish any income tax to any holders of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons.
36
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (ii) any sale, transfer,
lease or conveyance to another Person of the property of the Company as an
entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company other than as a result of or after the occurrence of a Termination Event
(any such event, a "Reorganization Event"), the Settlement Rate will be adjusted
to provide that each Holder of Securities will receive on the Purchase Contract
Settlement Date with respect to each Purchase Contract forming a part thereof,
the kind and amount of securities, cash and other property receivable upon such
Reorganization Event (without any interest thereon, and without any right to
dividends or distribution thereon which have a record date that is prior to the
Purchase Contract Settlement Date) by a Holder of the number of Common Stock
issuable on account of each Purchase Contract if the Purchase Contract
Settlement Date had occurred immediately prior to such Reorganization Event
assuming such Holder of Common Stock is not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be (any such Person,
a "Constituent Person"), or an Affiliate of a Constituent Person to the extent
such Reorganization Event provides for different treatment of Common Stock held
by Affiliates of the Company and non-affiliates and such Holder failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such Reorganization Event (provided that
if the kind or amount of securities, cash and other property receivable upon
such Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). In the event of such a Reorganization Event, the Person
formed by such consolidation, merger or exchange or the Person which acquires
the assets of the Company or, in the event of a liquidation or dissolution of
the Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Agent an agreement supplemental hereto
providing that the Holders of each Outstanding Security shall have the rights
provided by this Section 5.6. Such supplemental agreement shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental agreement, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section. The above provisions of this
Section shall similarly apply to successive Reorganization Events.
Section 5.5. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the Settlement Rate in accordance with
Section 5.4 and prepare and transmit to the Agent an Officer's
Certificate setting forth the Settlement
37
Rate, the method of calculation thereof in reasonable detail, and the
facts requiring such adjustment and upon which such adjustment is
based; and
(ii) within 10 Business Days following the occurrence of an
event that requires an adjustment to the Settlement Rate pursuant to
Section 5.4 (or if the Company is not aware of such occurrence, as soon
as practicable after becoming so aware), provide a written notice to
the Holders of the Securities of the occurrence of such event and a
statement in reasonable detail setting forth the method by which the
adjustment to the Settlement Rate was determined and setting forth the
adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or responsibility
to any Holder of Securities to determine whether any facts exist which may
require any adjustment of the Settlement Rate, or with respect to the nature or
extent or calculation of any such adjustment when made, or with respect to the
method employed in making the same. The Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any share of Common
Stock, or of any securities or property, which may at the time be issued or
delivered with respect to any Purchase Contract; and the Agent makes no
representation with respect thereto. The Agent shall not be responsible for any
failure of the Company to issue, transfer or deliver any Common Stock pursuant
to a Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
Section 5.6. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights and
obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Securities shall thereafter represent the
right to receive the Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, forming a part of such
Securities in the case of Normal Units, or Treasury Securities in the case of
Stripped Units, in accordance with the provisions of Section 4.3 of the Pledge
Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their addresses
as they appear in the Register.
Section 5.7. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.7, at the option of the Holder thereof, Purchase Contracts underlying
Securities, having an aggregate Stated Amount equal to $1,000 or an integral
multiple thereof, may be settled early ("Early Settlement") in the case of
Normal Units (unless a Tax Event Redemption has occurred) on or prior to the
fifth Business Day immediately preceding the Purchase Contract Settlement Date
and in the case of Stripped Units on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, in each case, as
provided herein; provided however, that if a Tax Event Redemption has occurred
and the Treasury Portfolio has become a component of the Normal Units, Purchase
Contracts underlying Normal Units may be settled early, on or prior to
38
the second Business Day immediately preceding the Purchase Contract Settlement
Date, but only in an aggregate amount of $__________ or in an integral multiple
thereof. In order to exercise the right to effect Early Settlement with
respect to any Purchase Contracts, the Holder of the Certificate evidencing
Securities shall deliver such Certificate to the Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and accompanied
by payment (payable to the Company in immediately available funds in an amount
(the "Early Settlement Amount") equal to (i) the product of (A) the Stated
Amount times (B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement plus (ii) in the case of Normal
Unit Certificates, if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such Payment Date, an
amount equal to the sum of the dividends on the related Debt Securities payable
on such Payment Date. Except as provided in the immediately preceding sentence,
no payment or adjustment shall be made upon Early Settlement of any Purchase
Contract on account of any dividends on the Common Stock issued upon such Early
Settlement. If the foregoing requirements are first satisfied with respect to
Purchase Contracts underlying any Securities at or prior to 5:00 p.m., New York
City time, on a Business Day, such day shall be the "Early Settlement Date" with
respect to such Securities and if such requirements are first satisfied after
5:00 p.m., New York City time, on a Business Day or on a day that is not a
Business Day, the "Early Settlement Date" with respect to such Securities shall
be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be entitled to
receive, _______ shares of Common Stock on account of each Purchase Contract as
to which Early Settlement is effected (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted. As promptly as practicable after Early Settlement
of Purchase Contracts in accordance with the provisions of this Section 5.7, the
Company shall issue and shall deliver to the Agent at the Corporate Trust Office
a certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 5.8.
(c) No later than the third Business Day after the applicable Early
Settlement Date the Company shall cause (i) the Common Stock issuable upon Early
Settlement of Purchase Contracts to be issued and delivered, and (ii) the
related Debt Securities or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, in the case of Normal Units, or the related Treasury
Securities, in the case of Stripped Units, to be released from the Pledge by the
Collateral Agent and transferred, in each case to the Agent for delivery to the
Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of Common Stock from the Company and the Debt Securities, the
Appropriate Applicable Ownership Interest in the Treasury Portfolio or Treasury
Securities, as the case may be, from the Collateral Agent, as applicable, the
Agent shall, in accordance with the instructions provided by the Holder thereof
on the applicable form of Election to Settle Early on the reverse of the
Certificate evidencing the related Securities, (i) transfer to the Holder the
Debt Securities, Treasury Portfolio or Treasury Securities, as the case may be,
forming a part of such Securities, and (ii) deliver to the Holder a
39
certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 5.8.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the Agent
shall authenticate, countersign and deliver to the Holder thereof, at the
expense of the Company, a Certificate evidencing the Securities as to which
Early Settlement was not effected.
Section 5.8. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional shares of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Agent, shall make a cash payment in respect of such fractional interest in
an amount equal to the value of such fractional shares times the Applicable
Market Value. The Company shall provide the Agent from time to time with
sufficient funds to permit the Agent to make all cash payments required by this
Section 5.8 in a timely manner.
Section 5.9. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the Common Stock pursuant to the
Purchase Contracts; provided, however, that the Company shall not be required to
pay any such tax or taxes which may be payable in respect of any exchange of or
substitution for a Certificate evidencing a Security or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a
Certificate surrendered in respect of the Securities evidenced thereby, other
than in the name of the Agent, as custodian for such Holder, and the Company
shall not be required to issue or deliver such share certificates or
Certificates unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
ARTICLE VI
REMEDIES
Section 6.1. Unconditional Right of Holders to Purchase Common Stock.
The Holder of any Normal Units or Stripped Units shall have the right,
which is absolute and unconditional, to purchase Common Stock pursuant to the
Purchase Contract constituting a part of such Security and to institute suit for
the enforcement of any such right to purchase
40
Common Stock and payment and such rights shall not be impaired without the
consent of such Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.10, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy upon
a default shall impair any such right or remedy or constitute a waiver of any
such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of Normal Units or
Stripped Units, by its acceptance of such Normal Units or Stripped Units shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Agreement, or in any
suit against the Agent for any action taken, suffered or omitted by it as Agent,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Agent, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of interest payments
on any Debt Securities, if declared, on or after the respective Payment Date
therefor in respect of any Security held by such Holder, or for enforcement of
the right to purchase Common Stock under the Purchase Contracts constituting
part of any Security held by such Holder.
41
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Agent or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
THE AGENT
Section 7.1. Certain Duties and Responsibilities.
(a) (1) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set forth in
this Agreement and the Pledge Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Agent; and
(2) in the absence of bad faith, willful misconduct or negligence on
its part, the Agent may, with respect to the Securities, conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Agent and conforming to
the requirements of this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Agent, the Agent shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement, but need not
confirm or investigate the accuracy of mathematical calculations stated therein.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent failure to
act, its own bad faith, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if adequate indemnity is not provided
to it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
42
(d) The Agent is authorized to execute and deliver the Pledge Agreement
in its capacity as Agent.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Agent has actual knowledge, the
Agent shall transmit by mail to the Company and the Holders of Securities, as
their names and addresses appear in the Register, notice of such default
hereunder, unless such default shall have been cured or waived.
Section 7.3. Certain Rights of Agent.
Subject to the provisions of Section 7.1:
(a) the Agent may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties; (b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officer's Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate of the Company;
(d) the Agent may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Agent shall determine to make
such further inquiry or investigation, it shall be given a reasonable
opportunity to examine the books, records and premises of the Company,
personally or by agent or attorney;
(f) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or an
Affiliate and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder;
43
(g) the rights, privileges, protections, immunities and benefits given
to the Agent, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Agent in each of its capacities
hereunder, and to each agent custodian and other Person employed to act
hereunder; and
(h) the Agent may request that the Company delivery an Officer's
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Agreement,
which Officer's Certificate may be signed by any person authorized to sign an
Officer's Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Company and the Agent assumes no responsibility for their
accuracy. The Agent makes no representations as to the validity or sufficiency
of either this Agreement or of the Securities, or of the Pledge Agreement or the
Pledge. The Agent shall not be accountable for the use or application by the
Company of the proceeds in respect of the Purchase Contracts.
Section 7.5. May Hold Securities.
Any Registrar or any other agent of the Company, or the Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, the Collateral
Agent or any other Person with the same rights it would have if it were not
Registrar or such other agent, or the Agent.
Section 7.6. Money Held in Custody.
Money held by the Agent in custody hereunder need not be segregated
from the other funds except to the extent required by law or provided herein.
The Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Agent from time to time such compensation as
shall be agreed in writing between the Company and the Agent for all
services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance
with any provision of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith; and
44
(3) to indemnify the Agent and any predecessor Agent for, and
to hold it harmless against, any and all loss, liability, damage, claim
or expense, including taxes (other than taxes based on the income of
the Agent), incurred without negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the acceptance
or administration of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The provisions of this Section 7.7 shall survive the termination of
this Agreement.
Section 7.8. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority and having a
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 7.10 shall not
have been delivered to the Agent within 30 days after the giving of such notice
of resignation, the resigning Agent may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and the
Company. If the instrument of acceptance by a successor Agent required by
Section 7.10 shall not have been delivered to the Agent within 30 days after the
giving of such notice or removal, the Agent being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Agent.
(d) if at any time:
45
(1) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months; or
(2) the Agent shall cease to be eligible under Section 7.8 and
shall fail to resign after written request therefor by the Company or
by any such Holder; or
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names and addresses
appear in the applicable Register. Each notice shall include the name of the
successor Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Company or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Agent all such rights, powers and agencies referred to in
paragraph (a) of this Section.
46
(c) No successor Agent shall accept its appointment unless at the time
of such acceptance such successor Agent shall be qualified and eligible under
this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent may adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Agent, and furnish to the Agent reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Agreement or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Agent shall, mail to all the Holders copies of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Agent of the materials to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such
mailing.
Section 7.13. No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the Agent
assumes no obligations and shall not be subject to any liability under this
Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Security thereunder. The Company agrees, and
each Holder of a Certificate, by his acceptance thereof, shall be deemed to have
agreed, that the Agent's execution of the Certificates on behalf of the Holders
shall be solely as agent and attorney-in-fact for the Holders, and that the
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
Section 7.14. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the Company, will
comply with all applicable certification, information reporting and withholding
(including "backup" withholding) requirements imposed by applicable tax laws,
regulations or administrative practice with respect
47
to (i) any payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the preparation
and timely filing of required returns and the timely payment of all amounts
required to be withheld to the appropriate taxing authority or its designated
agent.
(b) The Agent shall comply with any written direction received from the
Company with respect to the reasonable application of such requirements to
particular payments or Holders or in other particular circumstances, and may for
purposes of this Agreement rely on any such direction in accordance with the
provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Certificates; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.4(b); or
(5) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such matters or
questions arising under this Agreement, provided such action shall not
adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Agent, the Company, when authorized by
a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in any manner the terms of the
Purchase Contracts, or the provisions of this Agreement or the rights of the
Holders
48
in respect of the Securities; provided, however, that, except as contemplated
herein, no such supplemental agreement shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's Obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral (except for the rights of
Holders of Normal Units to substitute the Treasury Securities for the
Pledged Debt Securities or the rights of holders of Stripped Units to
substitute Debt Securities for the Pledged Treasury Securities) or
otherwise adversely affect the Holder's rights in or to such Collateral
or adversely alter the rights in or to such Collateral;
(3) impair the right to institute suit for the enforcement of
any Purchase Contract;
(4) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase Common Stock upon settlement of any Purchase Contract, change
the Purchase Contract Settlement Date or otherwise adversely affect the
Holder's rights under any Purchase Contract; or
(5) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for any such
supplemental agreement;
provided, that if any amendment or proposal referred to above would adversely
affect only the Normal Units or the Stripped Units, then only the affected class
of Holder as of the record date for the Holders entitled to vote thereon will be
entitled to vote on such amendment or proposal, and such amendment or proposal
shall not be effective except with the consent of Holders of not less than a
majority of such class.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive
and (subject to Section 7.1) shall be fully protected in relying upon, an
Officer's Certificate and an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement. The
Agent may, but shall not be obligated to, enter into any such supplemental
agreement which affects the Agent's own rights, duties or immunities under this
Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of
49
this Agreement for all purposes; and every Holder of Certificates theretofore or
thereafter authenticated, executed on behalf of the Holders and delivered
hereunder shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Certificates so modified as to
conform, in the opinion of the Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Agent in exchange for
Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any
other Person or sell, assign, transfer, lease or convey all or substantially all
of its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless (i) either the Company
shall be the continuing corporation, or the successor (if other than the
Company) shall expressly assume all the obligations of the Company under the
Purchase Contracts, the Debt Securities, this Agreement and the Pledge Agreement
by one or more supplemental agreements in form reasonably satisfactory to the
Agent and the Collateral Agent, executed and delivered to the Agent and the
Collateral Agent by such corporation, and (ii) the Company or such successor
corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale, assignment, transfer, lease or conveyance, be in
default in the performance of any covenant or condition hereunder, under any of
the Securities or under the Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of DTE Energy Company any or all
of the Certificates evidencing Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Agent; and, upon
the order of such successor corporation, instead of the Company, and subject to
all the terms, conditions and limitations in this Agreement prescribed, the
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Agent for authentication and execution, and any
Certificate evidencing Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Agent for that purpose. All the
Certificates so issued shall in all respects have the
50
same legal rank and benefit under this Agreement as the Certificates theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such Certificates had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Securities thereafter to be issued as
may be appropriate.
Section 9.3. Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
assignment, transfer, lease or conveyance, and any such assumption, complies
with the provisions of this Article and that all conditions precedent to the
consummation of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance have been met.
ARTICLE X
COVENANTS
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Certificates may be presented or surrendered for
acquisition of Common Stock upon settlement of the Purchase Contracts on the
Purchase Contract Settlement Date or Early Settlement and for transfer of
Collateral upon occurrence of a Termination Event, where Certificates may be
surrendered for registration of transfer or exchange, for a Collateral
Substitution or re-establishment of a Normal Unit and where notices and demands
to or upon the Company in respect of the Securities and this Agreement may be
served. The Company will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Agent as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Certificates may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Agent of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby designates as the place of
51
payment for the Securities the Corporate Trust Office and appoints the Agent at
its Corporate Trust Office as paying agent in such city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock the full number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
ARTICLE XI
TRUST INDENTURE ACT
Section 11.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the TIA
that are required or deemed to be part of this Agreement and shall, to
the extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the TIA, such imposed duties shall control.
Section 11.2 Lists of Holders of Securities.
(a) The Company shall furnish or cause to be furnished to the
Agent (a) semiannually, not later than June 1 and December 1 in each
year, commencing December 1, [2002], a list, in such form as the Agent
may reasonably require, of the names and addresses of the Holders
("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times as the Agent may request
in writing, within 30 days after the receipt by the Company of any such
request, a List of Holders as of a date not more than 15 days prior to
the time such list is furnished; provided that, the Company shall not
be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to
the Agent by the Company. The Agent may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Agent shall comply with its obligations under Section
311(a) of the TIA, subject to the provisions of Section 311(b) and
Section 312(b) of the TIA.
Section 11.3 Reports by the Agent.
Not later than November 15 of each year, commencing November
15, [2002], the Agent shall provide to the Holders such reports, if any, as are
required by Section 313(a) of the TIA in the form and in the manner provided by
Section 313(a) of the TIA. Such reports shall be as of the preceding September
15. The Agent shall also comply with the requirements of Sections 313(b), (c)
and (d) of the TIA.
Section 11.4 Periodic Reports to Agent.
The Company shall provide to the Agent such documents, reports
and information as required by Section 314 (if any) and the compliance
certificate required by Section 314(a)(4) of the TIA in the form, in the manner
and at the times required by Section 314 of the TIA, provided, that such
compliance certificate shall be delivered annually on or before in each
year, commencing .
Section 11.5 Evidence of Compliance with Conditions Precedent.
The Company shall provide to the Agent such evidence of
compliance with any conditions precedent provided for in this Agreement as and
to the extent required by Section 314(c) of the TIA. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(l) of the TIA may
be given in the form of an Officer's Certificate. Any opinion required to be
given pursuant to Section 314(c)(2) of the TIA may be given in the form of an
Opinion of Counsel.
Section 11.6 Defaults; Waiver.
The Holders of a majority of the outstanding Purchase
Contracts voting together as one class may, by vote, on behalf of all of the
Holders, waive any past Default and its consequences, except a default
(a) in the payment on any Security, or
(b) in respect of a provision hereof which under Section 8.2
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon such waiver, any such Default shall cease to exist, and any Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Agreement, but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 11.7 Agent's Knowledge of Defaults.
The Agent shall not be deemed to have knowledge of any Default
unless a Responsible Officer charged with the administration of this Agreement
shall have obtained written notice of such Default from the Company or any
Holder.
Section 11.8 Conflicting Interests.
The Indenture [others] shall be deemed to be specifically
described in this Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the TIA.
Section 11.9 Direction of Agent.
Section 316(a)(l)(A) of the TIA is hereby expressly excluded
from this Agreement, as permitted by the TIA.
52
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DTE ENERGY COMPANY
By:____________________________
Name:
Title:
[THE BANK OF NEW YORK],
as Purchase Contract Agent
By:____________________________
Name:
Title:
53
EXHIBIT A
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
Company or its agent for registration of transfer, exchange or payment, and any
Certificate issued is registered in the name of Cede & Co., or such other name
as requested by an authorized representative of The Depository Trust Company,
and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
NO. R-1 CUSIP NO.:
INITIAL NUMBER OF NORMAL UNITS:
Normal Unit Certificate
This Normal Unit Certificate certifies that Cede & Co. is the
registered Holder of the number of Normal Units set forth above, subject to
increase or decrease in the equivalent aggregate principal amount set forth on
the schedule hereto. Each Normal Unit represents (i) beneficial ownership by the
Holder of either (a) one ____________ (the "Debt Security"), of DTE Energy
Company, a company duly organized and existing under the laws of the State of
Michigan (the "Company"), having an aggregate principal amount of US$___,
subject to the Pledge of such Debt Security by such Holder pursuant to the
Pledge Agreement or (b) upon the occurrence of a Tax Event Redemption prior to
the Purchase Contract Settlement Date, the appropriate Applicable Ownership
Interest in the Treasury Portfolio, subject to the Pledge of such Applicable
Ownership Interest in the Treasury Portfolio by such Holder pursuant to the
Pledge Agreement, and (ii) the rights and obligations of the Holder under one
Purchase Contract with the Company. All capitalized terms used herein which are
defined in the Purchase Contract Agreement have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, constituting part of each Normal Unit evidenced hereby have been pledged
to the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising a portion of
such Normal Unit.
The Pledge Agreement provides that all payments of the Stated Amount of
or the appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio, as the case may be, or
cash interest on, any Pledged Debt
A-1
Securities (as defined in the Pledge Agreement) or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, constituting
part of the Normal Units received by the Collateral Agent shall be paid by the
Collateral Agent by wire transfer in same day funds (i) in the case of (A) cash
interest or distribution with respect to Pledged Debt Securities or the
appropriate Applicable Ownership Interest (as specified in clause (B) of the
definition of such term) of the Treasury Portfolio, as the case may be, and (B)
any payments of the Stated Amount with respect to any Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, that have been released from the Pledge pursuant to the Pledge
Agreement, to the Agent to the account designated by the Agent, no later than
2:00 p.m., New York City time, on the Business Day such payment is received by
the Collateral Agent (provided that in the event such payment is received by the
Collateral Agent on a day that is not a Business Day or after 12:30 p.m., New
York City time, on a Business Day, then such payment shall be made no later than
10:30 a.m., New York City time, on the next succeeding Business Day) and (ii) in
the case of payments of the Stated Amount or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, as the case may be, of any Pledged Debt Securities or
the appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, to the
Company on the Purchase Contract Settlement Date (as defined herein) in
accordance with the terms of the Pledge Agreement, in full satisfaction of the
respective obligations of the Holders of the Normal Units of which such Pledged
Debt Securities or the Treasury Portfolio, as the case may be, are a part under
the Purchase Contracts forming a part of such Normal Units. Interest payments on
any Debt Security or the appropriate Applicable Ownership Interest (as specified
in clause (B) of the definition of such term) of the Treasury Portfolio, as the
case may be, forming part of a Normal Units evidenced hereby which are payable
quarterly in arrears on __________, __________, __________ and __________ of
each year, commencing __________ (a "Payment Date"), shall, subject to receipt
thereof by the Agent from the Collateral Agent, be paid to the Person in whose
name this Normal Unit Certificate (or a Predecessor Normal Unit Certificate) is
registered at the close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Unit Certificate to purchase, and the Company to sell, on __________ (the
"Purchase Contract Settlement Date"), at a price equal to $_____ (the "Stated
Amount"), a number of shares of Common Stock, without par value ("Common
Stock"), of the Company, equal to the Settlement Rate, unless on or prior to the
Purchase Contract Settlement Date there shall have occurred a Termination Event
or an Early Settlement with respect to the Normal Units of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price (the "Purchase Price")
for the Common Stock purchased pursuant to each Purchase Contract evidenced
hereby, if not paid earlier, shall be paid on the Purchase Contract Settlement
Date by application of payment received in respect of the Stated Amount or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, of the
Pledged Debt Securities or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, pledged to secure the obligations under
such Purchase Contract of the Holder of the Normal Units of which such Purchase
Contract is a part.
A-2
Interest on the Debt Securities or the appropriate Applicable Ownership
Interest (as specified in clause (B) of the definition of such term) of the
Treasury Portfolio, as the case may be, will be payable at the office of the
Agent in The City of New York or, at the option of the Company, by check mailed
to the address of the Person entitled thereto as such address appears on the
Normal Unit Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Normal Unit Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DTE ENERGY COMPANY
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase Contracts
evidenced hereby)
By: [THE BANK OF NEW YORK],
not individually but solely as
Attorney-in-Fact of such Holder
By: _______________________________
Name:
Title:
Dated:
A-4
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Normal Unit Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: [THE BANK OF NEW YORK,]
as Purchase Contract Agent
By:
----------------------------------------------
Authorized Signatory
Dated:
A-5
(Form of Reverse of Normal Unit Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of (as may be supplemented from time
to time, the "Purchase Contract Agreement"), between the Company and [The Bank
of New York, a New York] banking corporation, as Purchase Contract Agent
(including its successors thereunder, herein called the "Agent"), to which
Purchase Contract Agreement and supplemental agreements thereto reference is
hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Agent, the Company, and the
Holders and of the terms upon which the Normal Unit Certificates are, and are to
be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Unit Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event or an Early Settlement with
respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $- (the "Threshold Appreciation Price"), -
shares of Common Stock per Purchase Contract, (b) if the Applicable Market Value
is less than the Threshold Appreciation Price but is greater than $- (the
"Threshold Depreciation Price"), the number of shares of Common Stock per
Purchase Contract equal to the Stated Amount divided by the Applicable Market
Value and (c) if the Applicable Market Value is less than or equal to the
Threshold Depreciation Price, - shares of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, as provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Normal Units to purchase at the Purchase Price, and the Company to sell,
a number of newly issued shares of Common Stock equal to the Early Settlement
Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company.
A-6
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of shares of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Normal Unit Certificate shall pay the Purchase Price for the
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement, or an Early Settlement or from the proceeds of a
remarketing of the related Pledged Debt Securities of such holders. A Holder of
Normal Units who does not elect, on or prior to 5:00 p.m., New York City time,
on the fifth Business Day immediately preceding the Purchase Contract Settlement
Date, to make an effective Cash Settlement or an Early Settlement, shall pay the
Purchase Price for the Common Stock to be issued under the related Purchase
Contract from the Proceeds of the sale of the related Pledged Debt Securities
held by the Collateral Agent. Such sale will be made by the Remarketing Agent
pursuant to the terms of the Remarketing Agreement and the Remarketing
Underwriting Agreement on the third Business Day immediately preceding the
Purchase Contract Settlement Date. If, as provided in the Purchase Contract
Agreement, upon the occurrence of a Failed Remarketing the Collateral Agent, for
the benefit of the Company, exercises its rights as a secured creditor with
respect to the Pledged Debt Securities related to this Normal Unit Certificate,
any accumulated and unpaid dividends on such Pledged Debt Securities will become
payable by the Company to the holder of this Normal Unit Certificate in the
manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any Common Stock in respect
of a Purchase Contract or deliver any certificates therefor to the Holder unless
it shall have received payment in full of the aggregate purchase price for the
Common Stock to be purchased thereunder in the manner herein set forth.
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall have occurred. Upon the occurrence of a Termination Event, the Company
shall give written notice to the Agent and to the Holders, at their addresses as
they appear in the Normal Unit Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Debt Security
(as defined in the Pledge Agreement) or the appropriate Applicable Ownership
Interest in the Treasury Portfolio from the Pledge. A Normal Unit shall
thereafter represent the right to receive the Debt Security or the appropriate
Applicable Ownership Interest in the Treasury Portfolio in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Debt Securities. Upon receipt of notice of any meeting at which holders of Debt
Securities are entitled to vote or upon the solicitation of consents, waivers or
proxies of holders of Debt Securities, the Agent shall, as soon as practicable
thereafter, mail to the Normal Unit holders a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating that each
Normal Unit holder on the record date set by the Agent therefor (which, to the
extent possible, shall be the same date as the record date for determining the
holders of Debt Securities entitled to vote) shall be entitled
A-7
to instruct the Agent as to the exercise of the voting rights pertaining to the
Debt Securities constituting a part of such holder's Normal Units and (c)
stating the manner in which such instructions may be given. Upon the written
request of the Normal Units Holders on such record date, the Agent shall
endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such requests, the maximum number of Debt
Securities as to which any particular voting instructions are received. In the
absence of specific instructions from the Holder of a Normal Unit, the Agent
shall abstain from voting the Debt Security evidenced by such Normal Unit.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Normal Units and the
Collateral Agent shall have such security interests rights and obligations with
respect to the Treasury Portfolio as the Holder of Normal Units and the
Collateral Agent had in respect of the Debt Securities, as the case may be,
subject to the Pledge thereof as provided in Articles II, III, IV, V and VI, of
the Pledge Agreement and any reference herein to the Debt Securities shall be
deemed to be reference to such Treasury Portfolio.
The Normal Unit Certificates are issuable only in registered form and
in denominations of a single Normal Unit and any integral multiple thereof. The
transfer of any Normal Unit Certificate will be registered and Normal Unit
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Normal Unit Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A holder who elects to substitute a Treasury
Security for Debt Securities or the appropriate Applicable Ownership Interest in
the Treasury Portfolio, thereby creating Stripped Units, shall be responsible
for any fees or expenses payable in connection therewith. Except as provided in
the Purchase Contract Agreement, for so long as the Purchase Contract underlying
a Normal Unit remains in effect, such Normal Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Normal Unit in respect of the Debt Security or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, and Purchase
Contract constituting such Normal Unit may be transferred and exchanged only as
a Normal Unit. The holder of a Normal Unit may substitute for the Pledged Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio securing its obligation under the related Purchase Contract Treasury
Securities in an aggregate principal amount at maturity equal to the aggregate
Stated Amount of the Pledged Debt Securities or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
in the Treasury Portfolio in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. From and after such Collateral Substitution,
the Security for which such Pledged Treasury Securities secures the Holder's
obligation under the Purchase Contract shall be referred to as a "Stripped
Unit." A Holder may make such Collateral Substitution only in integral multiples
of ___ Normal Units for ___ Stripped Units; provided, however, that if a Tax
Event Redemption has occurred and the Treasury Portfolio has become a component
of the Normal Units, a Holder may make such Collateral Substitutions only in
integral multiples of ___________ Normal Units for ___________ Stripped Units.
Such Collateral Substitution may cause the equivalent aggregate principal amount
of this Normal Unit Certificate to be increased
A-8
or decreased; provided, however, the equivalent aggregate principal amount of
Normal Units shall not exceed [$400,000,000]. All such adjustments to the
equivalent aggregate principal amount of this Normal Unit Certificate shall be
duly recorded by placing an appropriate notation on the Schedule attached
hereto.
A Holder of Stripped Units may create or recreate Normal Units by
depositing with the Collateral Agent Debt Securities or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, having an aggregate
Stated Amount, in the case of such Debt Securities, or with the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, in the case of such appropriate Applicable
Ownership Interest in the Treasury Portfolio, equal to the aggregate principal
amount at maturity of the Pledged Treasury Securities comprising part of the
Stripped Units in exchange for the release of such Pledged Treasury Securities
in accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. Any such recreation may be effected only in integral multiples of
___ Stripped Units for ___ Normal Units.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Agent or the
Company, if, on or prior to the Purchase Contract Settlement Date, a Termination
Event shall have occurred. Upon the occurrence of a Termination Event, the
Company shall promptly but in no event later than two Business Days thereafter
give written notice to the Agent, the Collateral Agent and to the Holders, at
their addresses as they appear in the Normal Unit Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, from the Pledge in accordance with the provisions
of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $1,000 or an
integral multiple thereof may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement ; provided, however, that if a Tax Event
Redemption has occurred and the Treasury Portfolio has become a component of the
Normal Units, Holders may early settle Normal Units only in integral multiples
of ___________ Normal Units. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Normal Unit
Certificate, the Holder of this Normal Unit Certificate shall deliver this
Normal Unit Certificate to the Agent at the Corporate Trust Office duly endorsed
for transfer to the Company or in blank with the form of Election to Settle
Early set forth below duly completed and accompanied by payment in the form of
immediately available funds payable to the order of the Company in an amount
(the "Early Settlement Amount") equal to (i) the product of (A) the Stated
Amount times (B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement, plus (ii) if such delivery is
made with respect to any Purchase Contracts during the period from the close of
business on any Record Date for any Payment Date to the opening of business on
such Payment Date, the interest payable on the related Debt Securities payable
on such Payment Date, if declared, with respect to such Purchase Contracts. Upon
Early Settlement of Purchase Contracts by a Holder of the related Securities,
the Pledged Debt Securities or the appropriate Applicable Ownership Interest in
the Treasury Portfolio underlying such Securities shall be released from
A-9
the Pledge as provided in the Pledge Agreement and the Holder shall be entitled
to receive a number of shares of Common Stock on account of each Purchase
Contract forming part of a Normal Unit as to which Early Settlement is effected
equal to the Early Settlement Rate. The Early Settlement Rate shall initially be
equal to - shares of Common Stock and shall be adjusted in the same manner and
at the same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
Upon registration of transfer of this Normal Unit Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Normal Units
Certificate. The Company covenants and agrees, and the Holder, by its acceptance
hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Holder of this Normal Unit Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Normal Units evidenced hereby on his behalf as his
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Pledge Agreement on his behalf as its attorney-in-fact, and consents to the
Pledge of the Debt Securities or the appropriate Applicable Ownership Interest
in the Treasury Portfolio, as the case may be, this Normal Unit Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees, that,
to the extent and in the manner provided in the Purchase Contract Agreement and
the Pledge Agreement, but subject to the terms thereof, payments in respect to
the Stated Amount of the Pledged Debt Securities, or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, on the Purchase Contract Settlement Date shall be
paid by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes 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 Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Normal Unit Certificate is
registered as the owner of the Normal Units evidenced hereby for the purpose of
receiving payments of interest payable quarterly on the Debt Securities, if
declared, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
A-10
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the designated office of the Agent.
A-11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
----------------------------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
----------------------------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
---------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying
Number of Assignee)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Normal Unit Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
-------------------------------------------------------------------------------
attorney to transfer said Normal Unit Certificate on the books of DTE Energy
Company with full power of substitution in the premises.
Dated:
------------------------------- -------------------------------------
Signature
NOTICE: The signature to this
assignment must correspond with the
A-12
name as it appears upon the face of
the within Normal Unit Certificate in
every particular, without alteration or
enlargement or any change
whatsoever.
Signature Guarantee:
---------------
A-13
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common Stock
deliverable upon settlement on or after the Purchase Contract Settlement Date of
the Purchase Contracts underlying the number of Normal Units evidenced by this
Normal Unit Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated:
-----------------
-------------------------------------
Signature
Signature Guarantee:
-----------------
(if assigned to another person)
If shares are to be registered
in the name of and delivered to
a Person other than the REGISTERED HOLDER
Holder, please (i) print such Person's
name and address and (ii) provide a
guarantee of your signature:
Please print name and
address of Registered
Holder:
---------------------------- ------------------------------------
Name Name
---------------------------- ------------------------------------
Address Address
---------------------------- ------------------------------------
---------------------------- ------------------------------------
---------------------------- ------------------------------------
Social Security or other
Taxpayer Identification
Number, if any ------------------------------------
A-14
ELECTION TO SETTLE EARLY
The undersigned Holder of this Normal Unit Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Normal Units evidenced by this Normal Unit
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Normal Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for Common Stock deliverable upon
such Early Settlement be registered in the name of, and delivered, together with
a check in payment for any fractional share and any Normal Unit Certificate
representing any Normal Units evidenced hereby as to which Early Settlement of
the related Purchase Contracts is not effected, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. Pledged Debt Securities or the appropriate Applicable Ownership Interest
in the Treasury Portfolio, as the case may be, deliverable upon such Early
Settlement will be transferred in accordance with the transfer instructions set
forth below. If shares are to be registered in the name of a Person other than
the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated:__________________ _____________________________
Signature
Signature Guarantee:__________________
A-15
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If Common Stock or Normal REGISTERED HOLDER
Unit Certificates are to be
registered in the name of and
delivered to and Pledged
Debt Securities are to be
transferred to a Person other
than the Holder, please print
such Person's name and address:
Please print name and
address of Registered
Holder:
---------------------------- ------------------------------------
Name Name
---------------------------- ------------------------------------
Address Address
---------------------------- ------------------------------------
---------------------------- ------------------------------------
---------------------------- ------------------------------------
Social Security or other
Taxpayer Identification
Number, if any ____________________________________
Transfer Instructions for Pledged Debt Securities Transferable Upon Early
Settlement or a Termination Event:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
A-16
TO BE ATTACHED TO GLOBAL CERTIFICATES
OUTSTANDING BALANCES
The following increases or decreases in this Global Certificate have
been made:
Equivalent
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
equivalent equivalent Certificate signatory of
Principal Amount Principal Amount following such Transfer Agent or
of the Global of the Global decrease or Securities
Date Certificate Certificate increase Custodian
----------- ---------------- ----------------- --------------- -----------------
A-17
EXHIBIT B
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
NAME OF A CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
Company or its agent for registration of transfer, exchange or payment, and any
Certificate issued is registered in the name of Cede & Co., or such other name
as requested by an authorized representative of The Depository Trust Company,
and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
NO. R-1 CUSIP NO.:
INITIAL NUMBER OF STRIPPED UNITS :- -
Stripped Unit Certificate
This Stripped Unit Certificate certifies that Cede & Co. is the
registered Holder of the number of Stripped Units set forth above, subject to
increase or decrease in the equivalent aggregate principal amount set forth on
the schedule hereto. Each Stripped Unit represents (i) a _____th undivided
beneficial ownership interest in a Treasury Security, subject to the Pledge of
such interest in such Treasury Security by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with DTE Energy Company, a corporation duly organized and existing
under the laws of the State of Michigan (the "Company"). All capitalized terms
used herein which are defined in the Purchase Contract Agreement have the
meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Stripped Unit evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Stripped Unit.
Each Purchase Contract evidenced hereby obligates the Holder of this
Stripped Unit Certificate to purchase, and the Company, to sell, on __________
(the "Purchase Contract Settlement Date"), at a price equal to $________ (the
"Stated Amount"), a number of shares of Common Stock, without par value per
share ("Common Stock"), of the Company equal to the Settlement Rate, unless on
or prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Stripped Units of
which such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully
B-1
described on the reverse hereof. The purchase price for the Common Stock
purchased pursuant to each Purchase Contract evidenced hereby will be paid by
application of the Proceeds from the Treasury Securities pledged to secure the
obligations under such Purchase Contract in accordance with the terms of the
Pledge Agreement.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Stripped Unit Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DTE ENERGY COMPANY
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of such Holder
under the Purchase Contracts)
By: [THE BANK OF NEW YORK,]
not individually but solely as
Attorney-in-Fact of such Holder
By: ____________________________
Name:
Title:
Dated:
B-3
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Stripped Units referred to in the within-mentioned
Purchase Contract Agreement.
By: [THE BANK OF NEW YORK,]
as Purchase Contract Agent
By:
---------------------------------------
Authorized Signatory
Dated:
B-4
(Reverse of Stripped Unit Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of ____ (as may be supplemented from time to time,
the"Purchase Contract Agreement") between the Company and [The Bank of New York,
a New York] banking corporation, as Purchase Contract Agent (including its
successors thereunder, herein called the "Agent"), to which the Purchase
Contract Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Agent, the Company and the Holders and
of the terms upon which the Stripped Unit Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Stripped Unit Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price") a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event or an Early Settlement with
respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $- (the "Threshold Appreciation Price"), -
shares of Common Stock per Purchase Contract, (b) if the Applicable Market Value
is less than the Threshold Appreciation Price but is greater than $- (the
"Threshold Depreciation Price"), the number of shares of Common Stock per
Purchase Contract equal to the Stated Amount divided by the Applicable Market
Value and (c) if the Applicable Market Value is less than or equal to the
Threshold Depreciation Price, - shares of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, as provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby which is settled through Early
Settlement shall obligate the Holder of the related Stripped Units to purchase
at the Purchase Price, and the Company to sell, a number of newly issued shares
of Common Stock equal to the Early Settlement Rate.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company.
B-5
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Stripped Unit Certificate shall pay the Purchase Price for the
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting either an Early Settlement of each such Purchase Contract or by
applying a principal amount at maturity of the Pledged Treasury Securities
underlying such Holder's Stripped Units equal to the Stated Amount of such
Purchase Contract to the purchase of the Common Stock.
The Company shall not be obligated to issue any Common Stock in respect
of a Purchase Contract or deliver any certificates therefor to the Holder unless
it shall have received payment in full of the aggregate purchase price for the
Common Stock to be purchased thereunder in the manner herein set forth.
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall have occurred. Upon the occurrence of a Termination Event, the Company
shall give written notice to the Agent and to the Holders, at their addresses as
they appear in the Stripped Unit Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Treasury
Securities (as defined in the Pledge Agreement) forming a part of each Stripped
Unit from the Pledge. A Stripped Unit shall thereafter represent the right to
receive the Treasury Securities forming a part of such Stripped Unit in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Stripped Unit Certificates are issuable only in registered form and
only in denominations of a single Stripped Unit and any integral multiple
thereof. The transfer of any Stripped Unit Certificate will be registered and
Stripped Unit Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Stripped Unit Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Holder who elects to substitute Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, for Pledged Treasury Securities, thereby
recreating Normal Units, shall be responsible for any fees or expenses payable
in connection therewith. Except as provided in the Purchase Contract Agreement,
for so long as the Purchase Contract underlying a Stripped Unit remains in
effect, such Stripped Unit shall not be separable into its constituent parts,
and the rights and obligations of the Holder of such Stripped Unit in respect of
the Treasury Security and the Purchase Contract constituting such Stripped Unit
may be transferred and exchanged only as a Stripped Unit. The Holder of a
Stripped Unit may substitute for the Pledged Treasury Securities securing its
obligation under the related Purchase Contract Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, with a Stated Amount, in the case of such Debt Securities, or with the
appropriate
B-6
Applicable Ownership Interest (as specified in clause (A) of the definition of
Ownership Interest in the Treasury Portfolio, equal to the aggregate principal
amount at maturity of the Pledged Treasury Securities in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, the Security for which such Debt Securities
secures the Holder's obligation under the Purchase Contract shall be referred to
as a "Normal Unit." A Holder may make such Collateral Substitution only in
integral multiples of Stripped Units for ____ Debt Securities. Such Collateral
Substitution may cause the equivalent aggregate principal amount at maturity of
this Stripped Unit Certificate to be increased or decreased; provided, however,
the equivalent aggregate principal amount outstanding under this Stripped Unit
Certificate shall not exceed [$400,000,000]. All such adjustments to the
equivalent aggregate principal amount of this Stripped Unit Certificate shall be
duly recorded by placing an appropriate notation on the Schedule attached
hereto.
A Holder of Normal Units may create or recreate a Stripped Unit by
delivering to the Collateral Agent Treasury Securities in an aggregate principal
amount [at maturity] equal to the aggregate Stated Amount of the Pledged Debt
Securities or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as the
case may be, in exchange for the release of such Pledged Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, in accordance with the terms of the Purchase Contract Agreement and the
Pledge Agreement. Any such recreation of a Stripped Unit may be effected only in
multiples of ___ Normal Units for ___ Stripped Units; provided, however, if a
Tax Event Redemption has occurred and the Treasury Portfolio has become a
component of the Normal Units, a Holder may make such Collateral Substitution in
integral multiples of ___________ Normal Units for _________ Stripped Units.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two business days thereafter give written notice to
the Agent, the Collateral Agent and to the Holders, at their addresses as they
appear in the Stripped Unit Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Treasury Securities
from the Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $1,000 or an
integral multiple thereof may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
Stripped Unit Certificate, the Holder of this Stripped Unit Certificate shall
deliver this Stripped Unit Certificate to the Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early set forth below duly completed and accompanied by
payment in the form of immediately available funds payable to the order of the
Company in an amount (the "Early Settlement Amount") equal to the product of (A)
the Stated Amount times (B) the number of Purchase Contracts with respect to
which the Holder has elected to effect
B-7
Early Settlement. Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Pledged Treasury Securities underlying such Securities
shall be released from the Pledge as provided in the Pledge Agreement and the
Holder shall be entitled to receive a number of shares of Common Stock on
account of each Purchase Contract forming part of a Stripped Unit as to which
Early Settlement is effected equal to the Early Settlement Rate. The Early
Settlement Rate shall initially be equal to - shares of Common Stock and shall
be adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Stripped Unit Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Stripped
Unit Certificate. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Stripped Unit Certificate, by his acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Stripped Units evidenced hereby on his behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Pledge Agreement on his behalf as his attorney-in-fact, and consents to the
Pledge of the Treasury Securities underlying this Stripped Unit Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees, that,
to the extent and in the manner provided in the Purchase Contract Agreement and
the Pledge Agreement, but subject to the terms thereof, payments in respect to
the Stated Amount of the Pledged Treasury Securities on the Purchase Contract
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes 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 Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Stripped Unit Certificate
is registered as the owner of the Stripped Units evidenced hereby for the
purpose of receiving payments of interest on the Treasury Securities,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Agent nor any such
agent shall be affected by notice to the contrary.
B-8
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the designated office of the Agent.
B-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
-----------------------------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
-----------------------------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Stripped Unit Certificate and all rights thereunder, hereby
irrevocably constituting and appointing
-------------------------------------------------------------------------------
attorney to transfer said Stripped Unit Certificate on the books of DTE Energy
Company with full power of substitution in the premises.
Dated: _________________ __________________________
Signature
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Stripped Xxxx
X-00
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee:_______________
B-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common Stock
deliverable upon settlement on or after the Purchase Contract Settlement Date of
the Purchase Contracts underlying the number of Stripped Units evidenced by this
Stripped Unit Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated:_______________________ ____________________________________
Signature
Signature Guarantee:
If shares are to be registered in
the name of and delivered REGISTERED HOLDER
to a Person other than the Holder,
please print such Person's name
and address:
Please print name and
address of Registered
Holder:
--------------------------------- ------------------------------------
Name Name
--------------------------------- ------------------------------------
Address Address
--------------------------------- ------------------------------------
--------------------------------- ------------------------------------
--------------------------------- ------------------------------------
Social Security or other
Taxpayer Identification
Number, if any
------------------------------------
B-12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Stripped Unit Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Stripped Units evidenced by this Stripped
Unit Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Stripped Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for Common Stock deliverable upon
such Early Settlement be registered in the name of, and delivered, together with
a check in payment for any fractional share and any Stripped Unit Certificate
representing any Stripped Units evidenced hereby as to which Early Settlement of
the related Purchase Contracts is not effected, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. Pledged Treasury Securities deliverable upon such Early Settlement will
be transferred in accordance with the transfer instructions set forth below. If
shares are to be registered in the name of a Person other than the undersigned,
the undersigned will pay any transfer tax payable incident thereto.
Dated:______________________ ________________________________
Signature
Signature Guarantee: _________________________
B-13
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If Common Stock or Stripped REGISTERED HOLDER
Unit Certificates are to be
registered in the name of and
delivered to and Pledged
Treasury Securities are to be
transferred to a Person other
than the Holder, please print
such Person's name and address:
Please print name and
address of Registered
Holder:
--------------------------------- ------------------------------------
Name Name
--------------------------------- ------------------------------------
Address Address
--------------------------------- ------------------------------------
--------------------------------- ------------------------------------
--------------------------------- ------------------------------------
Social Security or other
Taxpayer Identification
Number, if any
------------------------------------
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
---------------------------------
---------------------------------
---------------------------------
B-14
TO BE ATTACHED TO GLOBAL CERTIFICATES
OUTSTANDING BALANCES
The following increases or decreases in this Global Certificate have
been made:
Equivalent
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
equivalent equivalent Certificate signatory of
Principal Amount Principal Amount following such Transfer Agent or
of the Global of the Global decrease or Securities
Date Certificate Certificate increase Custodian
----------- ----------------- -------------------- ---------------- -----------------
B-15
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
[The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 21 West
New York, New York]
Attention: Corporate Trust Administration
Re: [Title of Securities] of DTE Energy Company (the "Company"),
We hereby notify you in accordance with Section 4.1 of the Pledge Agreement,
dated as of _______, among the Company, yourselves, as Collateral Agent, and
ourselves, as Purchase Contract Agent and as attorney-in-fact for the holders of
[Normal Units] [Stripped Units] from time to time, that the holder of securities
listed below (the "Holder") has elected to substitute [$_____ aggregate
principal amount at maturity of Treasury Securities] [$_______ Stated Amount of
Debt Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be,] in exchange for the [Pledged Debt Securities or
the appropriate Applicable Ownership Interest in the Treasury Portfolio, as the
case may be,] [Pledged Treasury Securities] held by you in accordance with the
Pledge Agreement and has delivered to us a notice stating that the Holder has
transferred [Treasury Securities] [Debt Securities or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be,] to you, as
Collateral Agent. We hereby instruct you, upon receipt of such [Pledged Treasury
Securities] [Pledged Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be,] and upon the payment by
such Holder of any applicable fees, to release the [Debt Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be,] [Treasury Securities] related to such [Normal Units] [Stripped Units]
to us in accordance with the Holder's instructions.
Date:____________________
-----------------------------------------
By:
-------------------------------------
Name:
Title:
Signature Guarantee:
--------------------
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Debt Securities or the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be,] for the [Pledged Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be,] [Pledged Treasury Securities]:
C-1
----------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
-----------------------------
Address
-----------------------------
-----------------------------
C-2
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
[The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 21 West
New York, New York]
Attention: Corporate Trust Administration
Re: [Title of Securities] of DTE Energy Company (the "Company"),
The undersigned Holder hereby notifies you that it has delivered to
[The Bank of New York,] as Collateral Agent, [$_______ aggregate principal
amount at maturity of Treasury Securities] [$_______ Stated Amount of Debt
Securities or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be,] in exchange for the [Pledged Debt Securities]
[Pledged Treasury Securities] held by the Collateral Agent, in accordance with
Section 4.1 of the Pledge Agreement, dated _______, among you, the Company and
the Collateral Agent. The undersigned Holder has paid the Collateral Agent all
applicable fees relating to such exchange. The undersigned Holder hereby
instructs you to instruct the Collateral Agent to release to you on behalf of
the undersigned Holder the [Pledged Debt Securities or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,]
[Pledged Treasury Securities] related to such [Normal Units] [Stripped Units].
Date: ___________________ _______________________________________________
By: ___________________________________________
Signature Guarantee: __________________________
Dated:
Please print name and address of Registered Holder:
_________________________ _______________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_________________________
_________________________
_________________________
D-1
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
[The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 21 West
New York, New York]
Attention: Corporate Trust Administration
Re: [Title of Securities] of DTE Energy Company (the "Company"),
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.3 of the Purchase Contract Agreement, dated as of _________
between the Company, yourselves, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts, that such Holder has
elected to pay to the Collateral Agent, on or prior to 11:00 a.m. New York City
time, on the Business Day immediately preceding the Purchase Contract Settlement
Date, (in lawful money of the United States by [certified or cashiers check]
[wire transfer] in immediately available funds), $_________ as the Purchase
Price for the Common Stock issuable to such Holder by the Company under the
related Purchase Contract on the Purchase Contract Settlement Date. The
undersigned Holder hereby instructs you to notify promptly the Collateral Agent
of the undersigned Holders election to make such cash settlement with respect to
the Purchase Contracts related to such Holder's [Normal Units] [Stripped Units].
Date: ___________________ _______________________________________________
By: ___________________________________________
Signature Guarantee: __________________________
Dated:
Please print name and address of Registered Holder:
_________________________ _______________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_________________________
_________________________
_________________________
E-1
