EXHIBIT 4.4
MCN ENERGY GROUP INC.
THIRD AMENDMENT
to
RIGHTS AGREEMENT
(October 4, 1999)
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THIS THIRD AMENDMENT dated as of October 4, 1999 (the "Amendment")
amends the Rights Agreement as amended (the "Rights Agreement") by and between
MCN Energy Group Inc., a Michigan corporation (formerly MCN Corporation) (the
"Company") and First Chicago Trust Company of New York, a New York corporation,
(the "Rights Agent"), as successor to National Bank of Detroit. All terms not
otherwise defined herein shall have the meaning given such terms in the
Agreement.
WHEREAS, the above-mentioned parties have previously entered into that
certain Rights Agreement dated as of December 20, 1989, as amended by an
Amendment dated as of September 19, 1994, and an Amendment dated as of July 23,
1997;
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interest of the Company and its stockholders to effect certain
amendments to the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement the Company
may, subject to certain limitations, amend the Rights Agreement without the
approval of any holders of Rights Certificates to make any provisions with
respect to the Rights which the Company deems necessary or desirable;
WHEREAS, the Company will be entering into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of October 4, 1999, among the Company,
DTE Energy Company, a Michigan corporation ("Parent") and DTE Enterprises, Inc.,
a Michigan corporation and a direct, wholly owned subsidiary of Parent ("Merger
Subsidiary"), whereby the Company will merge with and into Merger Subsidiary
(the "Merger") upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS, the Board of Directors deems it desirable and in the best
interests of its shareholders that the transactions contemplated by the Merger
Agreement be consummated;
WHEREAS, Section 5.1.(p) of the Merger Agreement provides that, the
Company shall amend the Rights Agreement to provide that no "Distribution Date"
shall occur, that the Rights will not separate from the shares, that Parent
shall not become an "Acquiring Person" by reason or as a result of the
consummation of the Merger or any other transactions contemplated by the Merger
Agreement and that the Rights Agreement will expire immediately prior to the
consummation of the Merger;
WHEREAS, such parties wish to amend the Rights Agreement in the manner
set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment.
(a) All capitalized terms used herein, unless otherwise defined herein,
shall have the meanings given them in the Rights Agreement, and each reference
in the Rights Agreement to "this Agreement," "hereof," "herein," "hereunder" or
"hereby" and each other similar reference shall be deemed to refer to the Rights
Agreement as amended hereby. All references to the Rights Agreement in any other
agreement between or among any of the parties hereto relating to the
transactions contemplated by the Rights Agreement shall be deemed to refer to
the Rights Agreement as amended hereby.
(b) The definition of "Acquiring Person" in Section 1(a) is hereby
amended by replacing it in its entirety with the following:
"(a) "Acquiring Person" shall mean any Person (as hereinafter defined)
who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as hereinafter defined) of 20% or more of the Common Shares of
the Company then outstanding, but shall not include the Company, any
Subsidiary (as hereinafter defined) of the Company, any employee
benefit plan of the Company or any Subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any such
plan. Notwithstanding the foregoing, no Person shall become an
Acquiring Person as the result of an acquisition of Common Shares by
the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such
Person to 20% or more of the Common Shares of the Company then
outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 20% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial Owner
of any additional Common Shares of the Company, then such Person shall
be deemed to be an Acquiring Person; PROVIDED FURTHER that neither
Parent nor Merger Subsidiary nor any of Parent's affiliates shall
become an Acquiring Person by reason or as a result of the Merger or
any other transactions contemplated by the Merger Agreement.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of Common Shares
so that such person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this paragraph (a),
then such Person shall not be deemed to be an "Acquiring Person" for
any purpose of this Rights Agreement."
(c) The definition of "Distribution Date" in Section 1(g) is hereby
amended by replacing
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it in its entirety with the following:
"(g) "Distribution Date" shall have the meaning set forth in Section 3
hereof; PROVIDED HOWEVER that no Distribution Date shall occur by
reason or as a result of the Merger or any other transactions
contemplated by the Merger Agreement."
(d) The definition of "Shares Acquisition Date" in Section 1(l) is
hereby amended by replacing it in its entirety with the following:
"(l) "Shares Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such; PROVIDED THAT no Shares Acquisition Date shall
occur by reason or as a result of the Merger or any other transactions
contemplated by the Merger Agreement."
(e) The following definitions are hereby added to Section 1:
""Merger" means the merger of the Company with and into Merger
Subsidiary upon the terms and subject to the conditions set forth in the Merger
Agreement."
""Merger Agreement" means the Agreement and Plan of Merger, dated as of
October 4, 1999, among the Company, Merger Subsidiary and Parent as the same may
be amended pursuant to its terms."
""Merger Subsidiary" means DTE Enterprises, Inc., a Michigan
corporation and a direct, wholly owned subsidiary of DTE Energy Company, a
Michigan corporation."
""Parent" means DTE Energy Company, a Michigan corporation."
(f) Section 3(a) is hereby amended by replacing it in its entirety with
the following:
"Section 3. Issue of Right Certificates. (a) Until the earlier of (i)
the tenth day after the Shares Acquisition Date or (ii) the tenth
business day (or such later date as may be determined by action of the
Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any Person
(other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any
entity holding Common Shares for or pursuant to the terms of any such
plan) of, or of the first public announcement of the intention of any
Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the
Company or any entity holding Common Shares for or pursuant to the
terms of any such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the
Beneficial Owner of Common Shares aggregating 20% or more of the then
outstanding Common Shares (including any such date which is after the
date of this Agreement and prior to the issuance of the Rights; the
earlier of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be
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evidenced (subject to the provisions of Section 3(b) hereof) by the
certificates for Common Shares registered in the names of the holders
thereof or by the entries in the Company's registrar for Common Shares
which are evidenced by book-entry register only (which certificates or
entries shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the transfer
of Common Shares; PROVIDED HOWEVER that no Distribution Date shall
occur by reason or as a result of the Merger or any other transactions
contemplated by the Merger Agreement. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights
Agent will countersign, and the Company will send or cause to be sent
(and the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Shares
as of the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate,
in substantially the form of Exhibit B hereto (a "Right Certificate")
evidencing one Right for each Common Share so held. Notwithstanding the
foregoing, but subject to Section 14 hereof, Right Certificates will be
issued directly to participants in the Company's Dividend Reinvestment
Plan and not to the agent of the Company for such plan based on the
number of Common Shares beneficially owned by each participant pursuant
to such plan. As of the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(g) Section 13 of the Agreement is hereby amended by replacing it in
its entirety as follows:
"Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, at any time after
a Person has become an Acquiring Person, (a) the Company shall
consolidate with, or merge with and into, any other Person, (b) any
Person shall consolidate with the Company, or merge with and into the
Company and the Company shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or
part of the Common Shares shall be changed into or exchanged for stock
or other securities of any other Person (or the Company) or cash or any
other property, or (c) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise transfer), in
one or more transactions, assets or earning power aggregating 50% or
more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person other than the Company or one or
more of its wholly-owned Subsidiaries, then, and in each such case,
proper provision shall be made so that (i) each holder of a Right
(except as otherwise provided herein) shall thereafter have the right
to receive, upon the exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-hundredths
of a Preferred Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of Preferred
Shares, such number of Common Shares of such other Person (including
the Company as successor thereto or as the surviving corporation) as
shall equal the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a Preferred Share
for which a Right is then exercisable and dividing that product by (B)
50% of the then current per share market price of the
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Common Shares of such other Person (determined pursuant to Section
11(d) hereof) on the date of consummation of such consolidation,
merger, sale or transfer; (ii) the issuer of such Common Shares shall
thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties
of the Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such issuer; and (iv) such
issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares in accordance
with Section 9 hereof) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the Common
Shares thereafter deliverable upon the exercise of the Rights. The
Company shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Company and such issuer shall have
executed and delivered to the Rights Agent a supplemental agreement so
providing. The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at the time of such transaction there
are any rights, warrants, instruments or securities outstanding or any
agreements or arrangements which, as a result of the consummation of
such transaction, would eliminate or substantially diminish the
benefits intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers; PROVIDED HOWEVER that the
provisions of this Section 13 shall not apply to Parent, Merger
Subsidiary, the Merger or the transactions contemplated by the Merger
Agreement.
(h) Section 7(a) of the Agreement is hereby amended by replacing it in
its entirety as follows:
"Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon surrender
of the Right Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at the
principal office of the Rights Agent or the office or agency of the
Rights Agent in New York, New York, together with payment of the
Purchase Price for each one one-hundredth of a Preferred Share as to
which the Rights are exercised, at or prior to the earliest of (i) the
close of business on July 23, 2007 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"), (iii) the time at which the Rights are
exchanged as provided in Section 24 hereof, or (iv) immediately prior
to the consummation of the merger of the Company with and into Merger
Subsidiary as contemplated by and in accordance with the Merger
Agreement.
2. Miscellaneous.
(a) Choice of Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Michigan and for all purposes shall be governed
and construed in accordance with the laws of such State applicable to contracts
to be made and performed entirely within such State.
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(b) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(c) Severability. If any term or provision of this Amendment is held by
a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms and provisions of this Amendment shall
in no way be affected, impaired or invalidated.
(d) Existing Terms. The existing terms and conditions of the Agreement
shall remain in full force and effect except as such terms and conditions are
specifically amended or conflict with the terms of this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed by the
respective authorized officers of the parties hereto, in each case as of the day
and year first above written.
The Company:
MCN ENERGY GROUP INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
Rights Agent:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Director, Corporate Actions
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