1
================================================================================
EXHIBIT 4(aa)
CMS ENERGY CORPORATION
and
THE BANK OF NEW YORK,
as Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT
Dated as of August 22, 2000.
================================================================================
2
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATIONS
SECTION 1.01 Definitions..............................................................................1
SECTION 1.02 Compliance Certificates and Opinions....................................................13
SECTION 1.03 Form of Documents Delivered to Purchase Contract
Agent...................................................................................13
SECTION 1.04 Acts of Holders; Record Dates...........................................................14
SECTION 1.05 Notices.................................................................................16
SECTION 1.06 Notice to Holders; Waiver...............................................................17
SECTION 1.07 Effect of Headings and Table of Contents................................................18
SECTION 1.08 Successors and Assigns..................................................................18
SECTION 1.09 Separability Clause.....................................................................18
SECTION 1.10 Benefits of Agreement...................................................................18
SECTION 1.11 Governing Law...........................................................................18
SECTION 1.12 Legal Holidays..........................................................................18
SECTION 1.13 Counterparts............................................................................19
SECTION 1.14 Inspection of Agreement.................................................................19
SECTION 1.15 Appointment of Financial Institution as Agent for the
Company.................................................................................19
ARTICLE 2
CERTIFICATE FORMS
SECTION 2.01 Forms of Certificates Generally.........................................................20
SECTION 2.02 Form of Purchase Contract Agent's Certificate of
Authentication..........................................................................21
ARTICLE 3
THE SECURITIES
SECTION 3.01 Amount; Form and Denominations..........................................................21
SECTION 3.02 Rights and Obligations Evidenced by the Certificates....................................22
SECTION 3.03 Execution, Authentication, Delivery and Dating..........................................23
SECTION 3.04 Temporary Certificates..................................................................24
SECTION 3.05 Registration; Registration of Transfer and Exchange.....................................24
SECTION 3.06 Book-entry Interests....................................................................26
SECTION 3.07 Notices to Holders......................................................................27
SECTION 3.08 Appointment of Successor Depositary.....................................................27
3
SECTION 3.09 Definitive Certificates.................................................................27
SECTION 3.10 Mutilated, Destroyed, Lost and Stolen Certificates......................................28
SECTION 3.11 Persons Deemed Owners...................................................................29
SECTION 3.12 Cancellation............................................................................30
SECTION 3.13 Creation of Treasury Peps Units by Substitution of
Treasury Securities.....................................................................31
SECTION 3.14 Reestablishment of Peps Units...........................................................33
SECTION 3.15 Transfer of Collateral upon Occurrence of Termination
Event...................................................................................34
SECTION 3.16 No Consent to Assumption................................................................35
ARTICLE 4
THE PREFERRED SECURITIES, SUBORDINATED DEFERRABLE
NOTES AND APPLICABLE OWNERSHIP INTEREST
OF THE TREASURY PORTFOLIO
SECTION 4.01 Interest Payments; Rights to Interest Payments
Preserved...............................................................................36
SECTION 4.02 Notice and Voting.......................................................................37
SECTION 4.03 Distribution of Subordinated Deferrable Notes...........................................38
ARTICLE 5
THE PURCHASE CONTRACTS
SECTION 5.01 Purchase of Shares of Common Stock......................................................40
SECTION 5.02 Payment of Purchase Price...............................................................42
SECTION 5.03 Issuance of Shares of Common Stock......................................................52
SECTION 5.04 Adjustment of Settlement Rate...........................................................53
SECTION 5.05 Notice of Adjustments and Certain Other Events..........................................60
SECTION 5.06 Termination Event; Notice...............................................................61
SECTION 5.07 Early Settlement........................................................................62
SECTION 5.08 Intentionally Omitted...................................................................64
SECTION 5.09 No Fractional Shares....................................................................64
SECTION 5.10 Charges and Taxes.......................................................................64
ARTICLE 6
REMEDIES
SECTION 6.01 Unconditional Right of Holders to Purchase Shares of
Common Stock............................................................................65
SECTION 6.02 Restoration of Rights and Remedies......................................................65
SECTION 6.03 Rights and Remedies Cumulative..........................................................65
SECTION 6.04 Delay or Omission Not Waiver............................................................66
SECTION 6.05 Undertaking for Costs...................................................................66
4
SECTION 6.06 Waiver of Stay or Extension Laws........................................................66
ARTICLE 7
THE PURCHASE CONTRACT AGENT
SECTION 7.01 Certain Duties and Responsibilities.....................................................67
SECTION 7.02 Notice of Default.......................................................................68
SECTION 7.03 Certain Rights of Purchase Contract Agent...............................................68
SECTION 7.04 Not Responsible for Recitals or Issuance of Securities..................................70
SECTION 7.05 May Hold Securities.....................................................................70
SECTION 7.06 Money Held in Custody...................................................................71
SECTION 7.07 Compensation and Reimbursement..........................................................71
SECTION 7.08 Corporate Purchase Contract Agent Required;
Eligibility.............................................................................72
SECTION 7.09 Resignation and Removal; Appointment of Successor.......................................72
SECTION 7.10 Acceptance of Appointment by Successor..................................................74
SECTION 7.11 Merger, Conversion, Consolidation or Succession to
Business................................................................................74
SECTION 7.12 Preservation of Information; Communications to
Holders.................................................................................75
SECTION 7.13 No Obligations of Purchase Contract Agent...............................................75
SECTION 7.14 Tax Compliance..........................................................................76
ARTICLE 8
SUPPLEMENTAL AGREEMENTS
SECTION 8.01 Supplemental Agreements Without Consent of Holders......................................76
SECTION 8.02 Supplemental Agreements with Consent of Holders.........................................77
SECTION 8.03 Execution of Supplemental Agreements....................................................78
5
SECTION 8.04 Effect of Supplemental Agreements.......................................................79
SECTION 8.05 Reference to Supplemental Agreements....................................................79
ARTICLE 9
MERGER, CONSOLIDATION, SHARE EXCHANGE,
SALE OR CONVEYANCE
SECTION 9.01 Covenant Not to Merge, Consolidate, Enter into a
Share Exchange, Sell or Convey Property Except under
Certain Conditions......................................................................79
SECTION 9.02 Rights and Duties of Successor Corporation..............................................80
SECTION 9.03 Officers' Certificate and Opinion of Counsel Given to
Purchase Contract Agent.................................................................81
ARTICLE 10
COVENANTS
SECTION 10.01 Performance under Purchase Contracts....................................................81
SECTION 10.02 Maintenance of Office or Agency.........................................................81
SECTION 10.03 Company to Reserve Common Stock.........................................................82
SECTION 10.04 Covenants as to Common Stock............................................................82
SECTION 10.05 Statements of Officers of the Company as to Default.....................................82
SECTION 10.06 ERISA...................................................................................83
6
PURCHASE CONTRACT AGREEMENT, dated as of August 22, 2000, between CMS
ENERGY CORPORATION, a Michigan corporation (the "COMPANY"), and THE BANK OF NEW
YORK, a New York banking corporation, acting as purchase contract agent for the
Holders of Securities (as defined herein) from time to time (the "PURCHASE
CONTRACT 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 Purchase Contract 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. For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
SECTION 1.01 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, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in the
7
Declaration: (i) Applicable Ownership Interest; (ii) Applicable Principal
Amount; (iii) Cash Merger Early Redemption; (iv) Cash Merger Early Redemption
Date; (v) Guarantee; (vi) Primary Treasury Dealer; (vii) Pro Rata, (viii)
Quotation Agent; (ix) Redemption Amount; (x); Redemption Price; (xi)
Remarketing, (xii) Reset Rate, (xiii) Tax Event Redemption, (xiv) Tax Event
Redemption Date; (xv) Two-Year Benchmark Treasury Rate; and (xvi) Treasury
Portfolio; and
(e) the following terms have the meanings given to them in this
Section 1.01(e):
"ACT" has the meaning, with respect to any Holder, set forth in Section
1.04.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"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 set forth in Section 5.01.
"APPLICANTS" has the meaning set forth in Section 7.12(b).
"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 Depositary or on the books of a Person maintaining an account
with such Depositary (directly as a Depositary Participant or as an indirect
participant, in each case in accordance with the rules of such Depositary).
"BOARD OF DIRECTORS" means the board of directors of the Company or a
duly authorized committee of that board.
8
"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 Purchase Contract Agent.
"BOOK-ENTRY INTEREST" means a beneficial interest in a Global
Certificate, registered in the name of a Depositary or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Depositary as described in Section 3.06.
"BUSINESS DAY" has the meaning set forth in the Indenture; provided
that for purposes of the second paragraph of Section 1.12 only, the term
"Business Day" shall also be deemed to exclude any day on which trading on the
New York Stock Exchange, Inc. is closed or suspended.
"CASH SETTLEMENT" has the meaning set forth in Section 5.02(a)(i).
"CERTIFICATE" means a PEPS Units Certificate or a Treasury PEPS Units
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 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.
"CLOSING PRICE" has the meaning set forth in Section 5.01.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" has the meaning set forth in Section 1.01 of the Pledge
Agreement.
"COLLATERAL ACCOUNT" has the meaning set forth in Section 1.01 of the
Pledge Agreement.
"COLLATERAL AGENT" means The Chase Manhattan Bank, 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.
9
"COLLATERAL SUBSTITUTION" has the meaning set forth in Section 3.13.
"COMMON STOCK" means the CMS Energy Corporation common stock, par value
$0.01 per share.
"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.
"CONSTITUENT PERSON" has the meaning set forth in Section 5.04(b).
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Purchase Contract Agent at which, at any particular time, its corporate
trust business shall be administered, which office at the date hereof is located
at 101 Barclay Street, Floor 21 West, New York, New York 10286, Attention:
Corporate Trust Trustee Administration.
"COUPON RATE" means the percentage rate per annum at which each
Subordinated Deferrable Note will bear interest initially and, on and after
August 18, 2003, the Reset Rate.
"CURRENT MARKET PRICE" has the meaning set forth in Section 5.04(a)(8).
"DECLARATION" means the Amended and Restated Declaration of Trust of
CMS Energy Trust III, dated as of August 22, 2000, among the Company as sponsor,
the trustees named therein and the holders from time to time of individual
beneficial interests in the assets of the Trust.
"DEPOSITARY" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities as contemplated by
Sections 3.06, 3.07, 3.08 and 3.09.
"DEPOSITARY PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book entry transfers and pledges of securities deposited with the Depositary.
"DTC" means The Depository Trust Company.
"EARLY SETTLEMENT" has the meaning set forth in Section 5.07(a).
10
"EARLY SETTLEMENT AMOUNT" has the meaning set forth in Section 5.07(a).
"EARLY SETTLEMENT DATE" has the meaning set forth in Section 5.07(a).
"EARLY SETTLEMENT RATE" has the meaning set forth in Section 5.07(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
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 set forth in Section 1.04(e).
"EXPIRATION TIME" has the meaning set forth in Section 5.04(a)(6).
"FAILED REMARKETING" has the meaning set forth in Section 5.02(b).
"FLOOR PRICE" has the meaning set forth in Section 5.01(ii).
"GLOBAL CERTIFICATE" means a Certificate that evidences all or part of
the Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"HOLDER" means, with respect to a Security, the Person in whose name
the Security evidenced by a Certificate is registered in the Security Register;
provided, however, that in determining whether the Holders of the requisite
number of Securities have voted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Security
remains in the form of one or more Global Certificates and if the Depositary
which is the registered holder of such Global Certificate has sent an omnibus
proxy assigning voting rights to the Depositary Participants to whose accounts
the Securities are credited on the record date, the term "Holder" shall mean
such Depositary Participant acting at the direction of the Beneficial Owners.
"INDENTURE" means the Indenture, dated as of June 1, 1997, between the
Company and the Indenture Trustee (including any provisions of the TIA that are
deemed incorporated therein), as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"INDENTURE TRUSTEE" means The Bank of New York, a New York banking
11
corporation, as trustee under the Indenture, or any successor thereto.
"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 President or
one of its Vice Presidents, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Purchase Contract
Agent.
"NON-ELECTING SHARE" has the meaning set forth in Section 5.04(b).
"NYSE" has the meaning set forth in Section 5.01.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, its President or one of its Vice Presidents, and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Purchase Contract
Agent. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(iii) a statement that, in the opinion of each such officer,
each such officer has made such examination or investigation as is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel to the Company (and who may be an employee of the Company), and who
shall be reasonably acceptable to the Purchase Contract Agent. An opinion of
counsel may rely on certificates as to matters of fact.
"OUTSTANDING SECURITIES" means, with respect to any Security and as of
the date of determination, all Securities evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement, except:
12
(i) If a Termination Event has occurred, (i) Treasury PEPS
Units and (ii) PEPS Units for which the underlying Subordinated
Deferrable Notes have been theretofore deposited with the Purchase
Contract Agent in trust for the Holders of such PEPS Units;
(ii) Securities evidenced by Certificates theretofore
cancelled by the Purchase Contract Agent or delivered to the Purchase
Contract Agent for cancellation or deemed cancelled pursuant to the
provisions of this Agreement; and
(iii) Securities 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 Purchase Contract Agent proof satisfactory to it that
such Certificate is held by a bona fide purchaser in whose hands the
Securities evidenced by such Certificate are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
number of the Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding Securities, except that, in determining whether the Purchase
Contract Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that a
Responsible Officer of the Purchase Contract Agent knows to be so owned shall be
so disregarded. Securities so owned that have been pledged in good faith may be
regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Purchase Contract Agent the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company or any
Affiliate of the Company.
"PAYMENT DATE" means each August 18, November 18, February 18 and May
18 , commencing November 18, 2000.
"PEPS UNIT" means the collective rights and obligations of a Holder of
a PEPS Units Certificate in respect of a Preferred Security, the Subordinated
Deferrable Notes or an appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, subject in each case to the Pledge thereof, and
the related Purchase Contract; provided, that the appropriate Applicable
Ownership Interest (as specified in clause (B) of the definition of such term)
of the Treasury Portfolio shall not be subject to the Pledge.
13
"PEPS UNITS CERTIFICATE" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of PEPS Units specified on such
certificate.
"PERMITTED INVESTMENTS" has the meaning set forth in Section 1.01 of
the Pledge Agreement.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"PLAN" means an employee benefit plan that is subject to ERISA, a plan
or individual retirement account that is subject to Section 4975 of the Code or
any entity whose assets are considered assets of any such plan.
"PLEDGE" means the pledge under the Pledge Agreement of the Preferred
Securities, the Subordinated Deferrable Notes, the Treasury Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, in each case constituting a
part of the Securities.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of August 22,
2000, among the Company, the Collateral Agent, the Securities Intermediary and
the Purchase Contract Agent, on its own behalf and as attorney-in-fact for the
Holders from time to time of the Securities.
"PLEDGED SUBORDINATED DEFERRABLE NOTES" has the meaning set forth in
the Pledge Agreement.
"PLEDGED PREFERRED SECURITIES" has the meaning set forth in the Pledge
Agreement.
"PREDECESSOR CERTIFICATE" means a Predecessor PEPS Units Certificate or
a Predecessor Treasury PEPS Units Certificate.
"PREDECESSOR PEPS UNITS CERTIFICATE" of any particular PEPS Units
Certificate means every previous PEPS Units Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
PEPS Units evidenced thereby; and, for the purposes of this definition, any PEPS
Units Certificate authenticated and delivered under Section 3.10 in exchange for
or in lieu of a
14
mutilated, destroyed, lost or stolen PEPS Units Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder as the
mutilated, destroyed, lost or stolen PEPS Units Certificate.
"PREDECESSOR TREASURY PEPS UNITS CERTIFICATE" of any particular
Treasury PEPS Units Certificate means every previous Treasury PEPS Units
Certificate evidencing all or a portion of the rights and obligations of the
Company and the Holder under the Treasury PEPS Units evidenced thereby; and, for
the purposes of this definition, any Treasury PEPS Units Certificate
authenticated and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Treasury PEPS Units Certificate shall be
deemed to evidence the same rights and obligations of the Company and the Holder
as the mutilated, destroyed, lost or stolen Treasury PEPS Units Certificate.
"PREFERRED SECURITIES" means the Preferred Securities of the Trust,
each having a stated liquidation amount of $25, representing preferred undivided
beneficial interests in the assets of the Trust.
"PROCEEDS" has the meaning set forth in Section 1.01 of the Pledge
Agreement.
"PROPERTY TRUSTEE" means The Bank of New York, as initial property
trustee under the Declaration, or any successors thereto that is a financial
institution unaffiliated with the Company.
"PURCHASE CONTRACT" means, with respect to any Security, the contract
forming a part of such Security and obligating the Company to sell, and the
Holder of such Security to purchase, shares of Common Stock on the terms and
subject to the conditions set forth in Article Five hereof.
"PURCHASE CONTRACT AGENT" means the Person named as the "PURCHASE
CONTRACT AGENT" in the first paragraph of this Agreement until a successor
Purchase Contract Agent shall have become such pursuant to the applicable
provisions of this Agreement, and thereafter "PURCHASE CONTRACT AGENT" shall
mean such Person.
"PURCHASE CONTRACT SETTLEMENT DATE" means August 18, 2003.
"PURCHASE CONTRACT SETTLEMENT FUND" has the meaning set forth in
Section 5.03.
"PURCHASE PRICE" has the meaning set forth in Section 5.01.
15
"PURCHASED SHARES" has the meaning set forth in Section 5.04(a)(6).
"RECORD DATE" for the interest 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, the fifteenth Business Day prior to such Payment
Date.
"REFERENCE DEALER" means a dealer engaged in trading of convertible
securities.
"REFERENCE PRICE" has the meaning set forth in Section 5.01.
"REMARKETING AGENT" has the meaning set forth in Section 5.02(b).
"REMARKETING AGREEMENT" means the Remarketing Agreement, dated as of
August 18, 2000, between the Company and the Remarketing Agent.
"REORGANIZATION EVENT" has the meaning set forth in Section 5.04(b).
"RESPONSIBLE OFFICER" means, with respect to the Purchase Contract
Agent, any officer of the Purchase Contract Agent assigned by the Purchase
Contract Agent to administer this Purchase Contract Agreement.
"SECURITIES INTERMEDIARY" means The Chase Manhattan Bank, as Securities
Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter Securities Intermediary shall mean such
successor.
"SECURITY" means a PEPS Unit or a Treasury PEPS Unit, as the case may
be.
"SECURITY REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings set forth in Section 3.05.
"SUBORDINATED DEFERRABLE NOTES" means the series of Subordinated
Deferrable Notes issued by the Company under the Indenture and held by the
Property Trustee.
"SETTLEMENT RATE" has the meaning set forth in Section 5.01.
"STATED AMOUNT" means $25.
16
"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 Federal or State 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;
(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 termination 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 under 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 the Bankruptcy Code or any
other similar applicable Federal or State 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 set forth in Section
5.01.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time, or any successor legislation.
"TRADING DAY" has the meaning set forth in Section 5.01.
"TREASURY PEPS UNIT" means, following the substitution of Treasury
17
Securities for Preferred Securities or Subordinated Deferrable Notes as
collateral to secure a Holder's obligations under the Purchase Contract, the
collective rights and obligations of a Holder of a Treasury PEPS Units
Certificate in respect of such Treasury Securities, subject to the Pledge
thereof, and the related Purchase Contract.
"TREASURY PEPS UNITS CERTIFICATE" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury PEPS
Units specified on such certificate.
"TREASURY SECURITIES" means zero-coupon U.S. Treasury Securities (CUSIP
No. 912820BG1) which mature on August 15, 2003.
"TRUST" means CMS Energy Trust III, a statutory business formed under
the laws of the State of Delaware, or any successor thereto by merger or
consolidation.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated as of
August 16, 2000, between the Company, CMS Energy Trust III and the Underwriters
identified in Schedule 1 thereto.
"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 1.02 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Purchase Contract Agent to take any
action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers' 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 Purchase
Contract 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 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:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
18
(ii) 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;
(iii) a statement that, in the opinion of each 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
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03 Form of Documents Delivered to Purchase Contract 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.
19
SECTION 1.04 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 an 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 Purchase Contract 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 7.01) conclusive in favor of
the Purchase Contract 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 Purchase Contract
Agent deems sufficient.
(c) The ownership of Securities shall be proved by the PEPS Units
Register or the Treasury PEPS Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Certificate evidencing such
Security 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 Purchase Contract 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 date 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 PEPS Units and the Outstanding Treasury PEPS 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 PEPS Units or the Treasury PEPS
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 prior to or on the applicable Expiration Date by Holders of the requisite
number of Outstanding Securities on such record date. Nothing contained in this
paragraph shall be construed to prevent the
20
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 be of no effect), and nothing contained 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 Purchase Contract Agent in writing
and to each Holder of Securities in the manner set forth in Section 1.06.
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 Purchase Contract Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.06, prior to or on 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 1.05 Notices.
Any notice or communication is duly given if in writing and delivered
in Person or mailed by first-class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Purchase Contract Agent only upon receipt thereof:
If to the Purchase Contract Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Telecopier No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
21
If to the Company:
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, Michigan 48126
Attention: General Counsel
Telecopy: (313) 436-9258
If to the Collateral Agent:
Chase Manhattan Bank.
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Corporate Trust Department
Telecopy: (212) 946-8159
If to the Property Trustee:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Telecopier No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
If to the Indenture Trustee:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Telecopier No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
SECTION 1.06 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 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
22
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Purchase Contract 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 Purchase Contract Agent shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.07 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 1.08 Successors and Assigns.
All covenants and agreements in this Agreement by the Company and the
Purchase Contract Agent shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 1.09 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 contained 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.
23
SECTION 1.12 Legal Holidays.
In any case where any Payment Date, any Purchase Contract Settlement
Date or Early Settlement Date shall not be a Business Day, (notwithstanding any
other provision of this Agreement or the Securities), Purchase Contracts shall
not be performed and Early Settlement shall not be effected on such date, but
Purchase Contracts shall be performed or Early Settlement effected, as
applicable, on the next succeeding Business Day with the same force and effect
as if made on such Payment Date, Purchase Contract Settlement Date, or Early
Settlement Date, as applicable, provided that no interest shall accrue or be
payable by the Company or to any Holder for the period from and after any such
Purchase Contract Settlement Date, or Early Settlement Date, as applicable,
except that, if such next succeeding Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day with the same force and effect as if made on such Purchase Contract
Settlement Date, or Early Settlement Date, as applicable.
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 or Beneficial Owner.
SECTION 1.15 Appointment of Financial Institution as Agent for the
Company.
The Company may appoint a financial institution (which may be the
Collateral Agent) to.17 act as its agent in performing its obligations and in
accepting and enforcing performance of the obligations of the Purchase Contract
Agent and the Holders, under this Agreement and the Purchase Contracts, by
giving notice of such appointment in the manner provided in Section 1.05 hereof.
Any such appointment shall not relieve the Company in any way from its
obligations hereunder.
24
ARTICLE 2
CERTIFICATE FORMS
SECTION 2.01 Forms of Certificates Generally.
The Certificates (including the form of Purchase Contract forming part
of each Security evidenced thereby) shall be in substantially the form set forth
in Exhibit A hereto (in the case of Certificates evidencing PEPS Units) or
Exhibit B hereto (in the case of Certificates evidencing Treasury PEPS Units),
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 Securities are
listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Certificates, as
evidenced by their execution of the Certificates.
The definitive 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 the Securities evidenced by
such 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 HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS
CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR SUCH
25
OTHER NAME AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
SECTION 2.02 Form of Purchase Contract Agent's Certificate of
Authentication.
The form of the Purchase Contract Agent's certificate of authentication
of the Securities shall be in substantially the form set forth on the form of
the applicable Certificates.
ARTICLE 3
THE SECURITIES
SECTION 3.01 Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 8,800,000 (subject to increase up to a maximum of 10,000,000 to the
extent the over-allotment option granted to the Underwriters in the Underwriting
Agreement is exercised), except for Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Certificates pursuant to Section 3.04, 3.05, 3.10, 3.13, 3.14, 5.07 or
8.05.
The Certificates shall be issuable only in registered form and only in
denominations of a single PEPS Unit or Treasury PEPS Unit and any integral
multiple thereof.
SECTION 3.02 Rights and Obligations Evidenced by the Certificates.
Each PEPS Units Certificate shall evidence the number of PEPS Units
specified therein, with each such PEPS Unit representing (1) the ownership by
the Holder thereof of a beneficial interest in a Preferred Security, a
Subordinated Deferrable Note or the Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, subject to the Pledge of such Preferred
Security, such Subordinated Note or the Applicable Ownership Interest (as
specified in clause (A) of the definition
26
of such term) of the Treasury Portfolio, as the case may be, by such Holder
pursuant to the Pledge Agreement, and (2) the rights and obligations of the
Holder thereof and the Company under one Purchase Contract. The Purchase
Contract Agent as attorney-in-fact for, and on behalf of, the Holder of each
PEPS Unit shall pledge, pursuant to the Pledge Agreement, the Preferred
Security, the Subordinated Note or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, forming a part of such PEPS 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 Preferred Security, such
Subordinated Note or the Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of 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 shares of Common Stock.
Upon the formation of a Treasury PEPS Unit pursuant to Section 3.13,
each Treasury PEPS Units Certificate shall evidence the number of Treasury PEPS
Units specified therein, with each such Treasury PEPS Unit representing (1) the
ownership by the Holder thereof of a 1/40 undivided beneficial interest in a
Treasury Security with a principal amount equal to $1,000, subject to the Pledge
of such Treasury Security by such Holder pursuant to the Pledge Agreement, and
(2) the rights and obligations of the Holder thereof and the Company under one
Purchase Contract.
Prior to the purchase of shares of Common Stock under each Purchase
Contract, such Purchase Contracts shall not entitle the Holder of a Security to
any of the rights of a holder of shares 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 a shareholder in respect of the meetings of
shareholders or for the election of directors of the Company or for any other
matter, or any other rights whatsoever as a shareholder of the Company.
SECTION 3.03 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
Purchase Contract Agent for authentication, execution on behalf of the Holders
and delivery, together with its Issuer Order for authentication of such
Certificates, and the Purchase Contract 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 its
Chairman
27
of the Board, its President or one of its Vice Presidents. 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 Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized signatory of the
Purchase Contract 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 Purchase Contract Agent by 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 3.04 Temporary Certificates.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
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
PEPS Units or Treasury PEPS Units, as the case may be, 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
28
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 Purchase Contract Agent, and the
Purchase Contract 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 Securities 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 Securities, evidenced thereby as definitive
Certificates.
SECTION 3.05 Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust Office a
register (the "SECURITY REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Purchase Contract Agent shall provide for
the registration of Certificates and of transfers of Certificates (the Purchase
Contract Agent, in such capacity, the "SECURITY REGISTRAR"). The Security
Registrar shall record separately the registration and transfer of the
Certificates evidencing PEPS Units and Treasury PEPS Units.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract 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 PEPS Units
or Treasury PEPS 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
PEPS Units or Treasury PEPS Units, as 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 Purchase Contract Agent, and the Purchase Contract 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 PEPS Units
or Treasury PEPS Units, as the case may be, and be entitled to the same benefits
and
29
subject to the same obligations, under this Agreement as the PEPS Units or
Treasury PEPS 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 exchange shall (if so required by the Purchase Contract Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract 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 Purchase Contract 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 3.06 and 8.05 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder
and deliver any Certificate in exchange for any other 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, an applicable Cash Merger Early 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 Purchase
Contract Agent shall:
(i) if the Purchase Contract Settlement Date or applicable
Cash Merger Early Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a
part of the Securities evidenced by such other Certificate; or
(ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Preferred Securities,
the Subordinated Deferrable Notes, the Treasury Securities, or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, 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.
30
SECTION 3.06 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 or its custodian by, or on behalf of, the Company. The Company hereby
designates DTC as the initial Depositary. Such Global Certificates 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 3.09. The Purchase Contract
Agent shall enter into an agreement with the Depositary if so requested by the
Company. Unless and until definitive, fully registered Certificates have been
issued to Beneficial Owners pursuant to Section 3.09:
(i) the provisions of this Section 3.06 shall be in full force
and effect;
(ii) the Company shall be entitled to deal with the Depositary
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 Certificates and shall have no obligation to
the Beneficial Owners;
(iii) to the extent that the provisions of this Section 3.06
conflict with any other provisions of this Agreement, the provisions of
this Section 3.06 shall control; and
(iv) the rights of the Beneficial Owners shall be exercised
only through the Depositary and shall be limited to those established
by law and agreements between such Beneficial Owners and the Depositary
or the Depositary Participants.
SECTION 3.07 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 the Depositary or the nominee of the
Depositary, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
SECTION 3.08 Appointment of Successor Depositary.
If the Depositary elects to discontinue its services as securities
depositary with
31
respect to the Securities, the Company may, in its sole discretion, appoint a
successor Depositary with respect to the Securities.
SECTION 3.09 Definitive Certificates.
If:
(i) the Depositary elects to discontinue its services as
securities depositary with respect to the Securities and a successor
Depositary is not appointed within 90 days after such discontinuance
pursuant to Section 3.08; or
(ii) the Company elects after consultation with the Purchase
Contract Agent to terminate the book-entry system for the Securities,
then (x) definitive Certificates shall be prepared by the Company with respect
to such Securities and delivered to the Purchase Contract Agent and (y) upon
surrender of the Global Certificates representing the Securities by the
Depositary, accompanied by registration instructions, the Company shall cause
definitive Certificates to be delivered to Beneficial Owners in accordance with
the instructions of the Depositary. 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. Each definitive Certificate so
delivered shall evidence Securities of the same kind and tenor as the Global
Certificate so surrendered in respect thereof.
SECTION 3.10 Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase Contract
Agent, the Company shall execute and deliver to the Purchase Contract Agent, and
the Purchase Contract Agent shall authenticate, execute on behalf of the Holder,
and deliver in exchange therefor, a new Certificate, evidencing the same number
of PEPS Units or Treasury PEPS Units, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase Contract
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Certificate, and (ii) such security or indemnity 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 Purchase Contract Agent that such Certificate
has been acquired by a bona fide purchaser, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract 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
32
new Certificate, evidencing the same number of PEPS Units or Treasury PEPS
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 Purchase Contract Agent, and the Purchase Contract
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, an
applicable Cash Merger Early 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 Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date or the applicable
Cash Merger Early Settlement Date has occurred, deliver the shares 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 Preferred Securities,
the Subordinated Deferrable Notes, the Treasury 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, 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 Purchase Contract 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 Purchase Contract 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.
33
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.
SECTION 3.11 Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer,
the Company and the Purchase Contract Agent, and any agent of the Company or the
Purchase Contract Agent, may treat the Person in whose name such Certificate is
registered as the owner of the Security evidenced thereby, for the purpose of
receiving distributions on the Preferred Securities, the Treasury Securities,
the Subordinated Deferrable Notes, or on the maturing quarterly interest strips
of the Treasury Portfolio, as applicable, performance of the Purchase Contracts
and for all other purposes whatsoever, whether or not any distributions on the
Preferred Securities, the Treasury Securities, the Subordinated Deferrable
Notes, or Treasury Portfolio, as applicable, constituting a part of the Security
evidenced thereby shall be overdue and notwithstanding any notice to the
contrary, and neither the Company nor the Purchase Contract Agent, nor any agent
of the Company or the Purchase Contract Agent, shall be affected by notice to
the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing contained herein shall prevent the Company, the Purchase Contract Agent
or any agent of the Company or the Purchase Contract Agent, from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary (or its nominee), as a Holder, with respect to such Global
Certificate or impair, as between such Depositary and the related Beneficial
Owner, the operation of customary practices governing the exercise of rights of
the Depositary (or its nominee) as Holder of such Global Certificate.
SECTION 3.12 Cancellation.
All Certificates surrendered for delivery of shares of Common Stock on
or after the Purchase Contract Settlement Date, upon the transfer of Preferred
Securities, Subordinated Deferrable Notes, the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of that term) of 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 transfer or exchange of a Security, or a Collateral
Substitution or the reestablishment of PEPS Units shall, if surrendered to any
Person other than the Purchase Contract Agent, be delivered to the Purchase
Contract Agent and, if not already cancelled, shall be promptly cancelled by it.
The Company may at any time deliver to the Purchase Contract 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
Purchase
34
Contract 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 Purchase Contract Agent shall
be disposed of 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 Purchase
Contract Agent cancelled or for cancellation.
SECTION 3.13 Creation of Treasury Peps Units by Substitution of
Treasury Securities.
Subject to the conditions set forth in this Agreement, a Holder may
separate the Preferred Securities or the Subordinated Deferrable Notes, as
applicable, from the related Purchase Contracts in respect of such Holder's PEPS
Units by substituting for such Preferred Securities or Subordinated Deferrable
Notes, as applicable, Treasury Securities in an aggregate principal amount equal
to the aggregate liquidation amount of such Preferred Securities or the
aggregate principal amount of such Subordinated Deferrable Notes, as applicable
(a "Collateral Substitution"), at any time from and after the date of this
Agreement and prior to or on the seventh Business Day immediately preceding
August 18, 2003. To effect such substitution, the Holder must:
(1) deposit with the Securities Intermediary Treasury
Securities having an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred
Securities or the aggregate principal amount of the
Subordinated Deferrable Notes comprising part of such
PEPS Units, as the case may be; and
(2) transfer the related PEPS Units to the Purchase
Contract Agent accompanied by a notice to the
Purchase Contract Agent, substantially in the form of
Exhibit C hereto, (i) stating that the Holder has
transferred the relevant amount of Treasury
Securities to the Securities Intermediary and (ii)
requesting that the Purchase Contract Agent instruct
the Collateral Agent to release the Preferred
Securities or the Subordinated Deferrable Notes, as
the case may be, underlying such PEPS Units,
35
whereupon the Purchase Contract Agent shall promptly
provide an instruction to such effect to the
Collateral Agent, substantially in the form of
Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (1) above
and the instruction described in clause (2) above, in accordance with the terms
of the Pledge Agreement, the Collateral Agent will cause the Securities
Intermediary to effect the release of such Preferred Securities or the
Subordinated Deferrable Notes, as the case may be, from the Pledge, free and
clear of the Company's security interest therein, and the transfer of such
Preferred Securities or the Subordinated Deferrable Notes, as the case may be,
to the Purchase Contract Agent on behalf of the Holder. Upon receipt thereof,
the Purchase Contract Agent shall promptly:
(i) cancel the related PEPS Units;
(ii) transfer the Preferred Securities or the Subordinated
Deferrable Notes, as the case may be, to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Treasury PEPS Units Certificate executed by the Company in
accordance with Section 3.03 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled PEPS Units.
Holders who elect to separate the Preferred Securities or the
Subordinated Deferrable Notes, as the case may be, from the related Purchase
Contracts and to substitute Treasury Securities for such Preferred Securities or
the Subordinated Deferrable Notes, 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.
Holders may make Collateral Substitutions only in integral multiples of
40 PEPS Units. If a Tax Event Redemption has occurred, Holders may no longer
convert their PEPS Units into Treasury PEPS Units.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the PEPS Units or fails to
deliver PEPS Units Certificates to the Purchase Contract Agent after depositing
Treasury Securities with the Collateral Agent, any distributions on the
Preferred Securities or the Subordinated Deferrable Notes constituting a part of
such PEPS Units, as the case may be, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until
such PEPS Units are so transferred or the
36
PEPS Units Certificate is so delivered, as the case may be, or, such Holder
provides evidence satisfactory to the Company and the Purchase Contract Agent
that such PEPS Units Certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Purchase Contract Agent and the
Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a PEPS Unit remains in effect, such PEPS Unit shall not be
separable into its constituent parts, and the rights and obligations of the
Holder in respect of the Preferred Securities or the Subordinated Deferrable
Notes, as the case may be, and the Purchase Contract comprising such PEPS Unit
may be acquired, and may be transferred and exchanged, only as a PEPS Unit.
SECTION 3.14 Reestablishment of Peps Units.
Subject to the conditions set forth in this Agreement, a Holder of
Treasury PEPS Units may reestablish PEPS Units at any time (i) prior to or on
the seventh Business Day immediately preceding August 18, 2003, by:
(1) depositing with the Securities Intermediary Preferred
Securities or Subordinated Deferrable Notes, as the
case may be, having an aggregate liquidation amount
(in the case of Preferred Securities) or aggregate
principal amount (in the case of Subordinated
Deferrable Notes), as the case may be, equal to the
aggregate principal amount at maturity of the
Treasury Securities comprising part of the Treasury
PEPS Units; and
(2) transferring the related Treasury PEPS Units to the
Purchase Contract Agent accompanied by a notice to
the Purchase Contract Agent, substantially in the
form of Exhibit C hereto, (i) stating that the Holder
has transferred the relevant amount of Preferred
Securities or Subordinated Deferrable Notes, as the
case may be, to the Securities Intermediary and (ii)
requesting that the Purchase Contract Agent instruct
the Collateral Agent to release the Treasury
Securities underlying such Treasury PEPS Units,
whereupon the Purchase Contract Agent shall promptly
provide an instruction to such effect to the
Collateral Agent, substantially in the form of
Exhibit C to the Pledge Agreement.
Upon receipt of the Preferred Securities or the Subordinated Deferrable Notes,
as the case may be, described in clause (1) above and the instruction described
in clause (2)
37
above, in accordance with the terms of the Pledge Agreement, the Collateral
Agent will cause the Securities Intermediary to effect the release of the
Treasury Securities having a corresponding aggregate principal amount at
maturity from the Pledge, free and clear of the Company's security interest
therein, and the transfer to the Purchase Contract Agent on behalf of the
Holder. Upon receipt thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Treasury PEPS Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a PEPS Units Certificate executed by the Company in accordance
with Section 3.03 evidencing the same number of Purchase Contracts as
were evidenced by the cancelled Treasury PEPS Units.
Holders who elect to reestablish PEPS Units shall be responsible for
any fees or expenses payable to the Collateral Agent for its services as
Collateral Agent in respect of the reestablishment, and the Company shall not be
responsible for any such fees or expenses.
Holders of Treasury PEPS Units may only reestablish PEPS Units in
integral multiples of 40 Treasury PEPS Units. If a Tax Event Redemption has
occurred, Holders may no longer convert their Treasury PEPS Units into PEPS
Units.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury PEPS Unit remains in effect, such Treasury PEPS
Unit shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Treasury PEPS Unit in respect of the 1/40 of a
Treasury Security and the Purchase Contract comprising such Treasury PEPS Unit
may be acquired, and may be transferred and exchanged, only as a Treasury PEPS
Unit.
SECTION 3.15 Transfer of Collateral upon Occurrence of Termination
Event.
Upon the occurrence of a Termination Event and the transfer to the
Purchase Contract Agent of the Preferred Securities, Subordinated Deferrable
Notes, the appropriate Applicable Ownership Interest of the Treasury Portfolio
or the Treasury Securities, as the case may be, underlying the PEPS Units and
the Treasury PEPS Units, as the case may be, pursuant to the terms of the Pledge
Agreement, the Purchase Contract Agent shall request transfer instructions with
respect to such
38
Preferred Securities, Subordinated Deferrable Notes, the appropriate Applicable
Ownership Interest of the Treasury Portfolio or Treasury Securities, as the case
may be, from each Holder by written request, substantially in the form of
Exhibit D hereto, mailed to such Holder at its address as it appears in the
Security Register.
Upon book-entry transfer of the PEPS Units or the Treasury PEPS Units
or delivery of a PEPS Units Certificate or Treasury PEPS Units Certificate to
the Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer the Preferred Securities, Subordinated Deferrable
Notes, the appropriate Applicable Ownership Interest of the Treasury Portfolio
or Treasury Securities, as the case may be, underlying such PEPS Units or
Treasury PEPS 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 PEPS Units or Treasury PEPS Units fails to effect such
transfer or delivery, the Preferred Securities, Subordinated Deferrable Notes,
the appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such PEPS Units or Treasury
PEPS Units, as the case may be, and any distributions thereon, shall be held in
the name of the Purchase Contract Agent or its nominee in trust for the benefit
of such Holder, until the earlier to occur of:
(i) the transfer of such PEPS Units or Treasury PEPS Units or
surrender of the PEPS Units Certificate or Treasury PEPS Units
Certificate or receipt by the Company and the Purchase Contract Agent
from such Holder of satisfactory evidence that such PEPS Units
Certificate or Treasury PEPS Units Certificate has been destroyed, lost
or stolen, together with any indemnity that may be required by the
Purchase Contract Agent and the Company; and
(ii) the expiration of the time period specified in the
abandoned property laws of the relevant State.
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 or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or Federal law providing for reorganization or
liquidation.
39
ARTICLE 4
THE PREFERRED SECURITIES, SUBORDINATED DEFERRABLE NOTES
AND APPLICABLE OWNERSHIP INTEREST
OF THE TREASURY PORTFOLIO
SECTION 4.01 Interest Payments; Rights to Interest Payments Preserved.
Any distribution on any Preferred Security, any Subordinated Deferrable
Note or on the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, which is paid on any Payment Date shall, subject
to receipt thereof by the Purchase Contract Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the PEPS Units Certificate (or one or more Predecessor PEPS Units
Certificates) of which such Preferred Security, such Subordinated Deferrable
Note or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, is registered at the close of business on the Record Date
for such Payment Date.
Each PEPS Units Certificate evidencing Preferred Securities,
Subordinated Deferrable Notes or the appropriate Applicable Ownership Interest
of the Treasury Portfolio delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of any other PEPS Units Certificate
shall carry the right to distributions accrued and unpaid, and to accrue
distributions interest, which were carried by the Preferred Securities,
Subordinated Deferrable Notes or the appropriate Applicable Ownership Interest
of the Treasury Portfolio underlying such other PEPS Units Certificate.
In the case of any PEPS Units with respect to which Cash Settlement of
the underlying Purchase Contract is properly effected pursuant to Section 5.02
hereof, or with respect to which Early Settlement of the underlying Purchase
Contract is properly effected pursuant to Section 5.07 hereof, or with respect
to which a Collateral Substitution is effected, in each case on a date that is
after any Record Date and prior to or on the next succeeding Payment Date,
distributions on the Preferred Securities, Subordinated Deferrable Notes or on
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, underlying such PEPS Unit 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 distributions shall,
subject to receipt thereof by the Purchase Contract Agent, be payable to the
Person in whose name the PEPS Units Certificate (or one or more Predecessor PEPS
Units Certificates) was registered at the close of business on the Record Date.
Except as otherwise expressly provided in the
40
immediately preceding sentence, in the case of any PEPS Unit with respect to
which Cash Settlement or Early Settlement of the underlying Purchase Contract is
properly effected, or with respect to which a Collateral Substitution has been
effected, distributions on the related Preferred Securities, Subordinated
Deferrable Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, that would otherwise be payable after
the Purchase Contract Settlement Date, an applicable Cash Merger Early
Settlement Date or Early Settlement Date shall not be payable hereunder to the
Holder of such PEPS Units; provided, however, that to the extent that such
Holder continues to hold separated Preferred Securities or Subordinated
Deferrable Notes that formerly comprised a part of such Holder's PEPS Unit, such
Holder shall be entitled to receive distributions on such separated Preferred
Securities or Subordinated Deferrable Notes.
Not later than 15 calendar days nor more than 30 calendar days prior to
the Remarketing Date, the Company shall request the Depositary to notify the
Beneficial Owners or Depositary Participants holding Securities of the
procedures to be followed by Holders of Securities who intend to effect a Cash
Settlement.
SECTION 4.02 Notice and Voting.
Under the terms of the Pledge Agreement, except as otherwise set forth
in Section 6 of the Pledge Agreement, the Purchase Contract Agent will be
entitled to exercise the voting and any other consensual rights pertaining to
the Pledged Preferred Securities or Pledged Subordinated Deferrable Notes. The
rights of the Purchase Contract Agent set forth in the previous sentence exist
only to the extent the Purchase Contract Agent is instructed in writing by the
Holders as described below. Except with respect to the rights retained by the
Collateral Agent described in Section 6 of the Pledge Agreement, upon receipt of
notice of any meeting at which holders of Preferred Securities or Subordinated
Deferrable Notes are entitled to vote or upon any solicitation of consents,
waivers or proxies of holders of Preferred Securities or Subordinated Deferrable
Notes, the Purchase Contract Agent shall, as soon as practicable thereafter,
mail, first class, postage pre-paid, to the Holders of PEPS Units a notice:
(i) containing such information as is contained in the notice
or solicitation;
(ii) stating that each Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall
be the same date as the record date for determining the holders of
Preferred Securities or Subordinated Deferrable Notes, as the case may
be, entitled to vote) shall be
41
entitled to instruct the Purchase Contract Agent as to the exercise of
the voting rights pertaining to such Preferred Securities or
Subordinated Deferrable Notes underlying their PEPS Units; and
(iii) stating the manner in which such instructions may be
given.
Upon the written request of the Holders of PEPS Units on such record date
received by the Purchase Contract Agent at least six days prior to such meeting,
the Purchase Contract 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 Preferred Securities or Subordinated Deferrable
Notes, as the case may be, as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of a PEPS
Unit, the Purchase Contract Agent shall abstain from voting the Preferred
Securities or Subordinated Deferrable Notes underlying such PEPS Unit. The
Company hereby agrees, if applicable, to solicit Holders of PEPS Units to timely
instruct the Purchase Contract Agent in order to enable the Purchase Contract
Agent to vote such Preferred Securities or Subordinated Deferrable Notes and the
Trust shall covenant to this effect in the Declaration.
SECTION 4.03 Distribution of Subordinated Deferrable Notes; Tax Event
Redemption.
Upon the dissolution and liquidation of the Trust in accordance with
the Declaration, a principal amount at maturity of Subordinated Deferrable Notes
constituting the assets of the Trust and underlying the Preferred Securities
equal to the aggregate liquidation amount of the Pledged Preferred Securities
shall be delivered to the Securities Intermediary in exchange for the Pledged
Preferred Securities. Thereafter, the Subordinated Deferrable Notes will be
substituted for the Pledged Preferred Securities as the Collateral, and will be
held by the Securities Intermediary in the Collateral Account in accordance with
the terms of the Pledge Agreement to secure the obligations of each Holder of a
PEPS Unit to purchase the Common Stock of the Company under the Purchase
Contracts constituting a part of such PEPS Unit. Following the dissolution and
liquidation of the Trust, the Holders and the Collateral Agent shall have such
security interests, rights and obligations with respect to the Subordinated
Deferrable Notes as the Holders and the Collateral Agent had in respect of the
Preferred Securities subject to the Pledge thereof as provided in the Pledge
Agreement. The Company may cause to be made in any PEPS Unit Certificates
thereafter to be issued such change in phraseology and form (but not in
substance) as may be appropriate to reflect the dissolution and liquidation of
the Trust and the substitution of Subordinated Deferrable Notes for Preferred
Securities as Collateral.
42
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 shall be
deposited in the Collateral Account in exchange for the Pledged Preferred
Securities or the Pledged Subordinated Deferrable Notes. Thereafter, pursuant to
the terms of the Pledge Agreement, the Collateral Agent shall cause the
Securities Intermediary to apply an amount equal to the Redemption Amount of
such Redemption Price to purchase on behalf of the Holders of PEPS Units the
Treasury Portfolio and promptly remit the remaining portion of such Redemption
Price to the Purchase Contract Agent for payment to the Holders of such PEPS
Units. The Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio will be substituted as
Collateral for the Pledged Preferred Securities or the Pledged Subordinated
Deferrable Notes, as the case may be, 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 PEPS Unit to purchase the Common Stock of the Company under the
Purchase Contract constituting a part of such PEPS Unit. Following the
occurrence of a Tax Event Redemption prior to the Purchase Contract Settlement
Date, the Holders of PEPS Units and the Collateral Agent shall have such
security interest rights and obligations with respect to the Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio as the Holders of PEPS Units and the Collateral Agent
had in respect of the Preferred Securities or Subordinated Deferrable Notes, as
the case may be, subject to the Pledge thereof as provided in the Pledge
Agreement, and any reference herein to the Preferred Securities or the
Subordinated Deferrable Notes shall be deemed to be reference to such Treasury
Portfolio. The Company may cause to be made in any PEPS Unit Certificates
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 Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio for Preferred Securities
or Subordinated Deferrable Notes as Collateral.
ARTICLE 5
THE PURCHASE CONTRACTS
SECTION 5.01 Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless a Cash Settlement or Cash Merger
Early Settlement has occurred in accordance with Section 5.02 hereof or an Early
Settlement has occurred in accordance with Section 5.07 hereof, obligate the
Holder of the related Security to purchase, and the Company to sell, on the
Purchase
43
Contract Settlement Date at a price equal to the Stated Amount (the "PURCHASE
PRICE"), a number of shares of Common Stock (subject to Section 5.09) equal to
the Settlement Rate unless, prior to or on 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:
(i) if the Applicable Market Value (as defined below) is
greater than or equal to $ (the "THRESHOLD APPRECIATION PRICE"),
shares of Common Stock per Purchase Contract;
(ii) if the Applicable Market Value is less than $ but
greater than $ (the "FLOOR PRICE"), the number of shares of Common
Stock per Purchase Contract having a value, based on the Applicable
Market Value, equal to the Stated Amount; and
(iii) if the Applicable Market Value is less than or equal to
$ , shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in Section 5.04 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
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" per share of Common Stock on any date of
determination means:
(i) the closing sale price as of the 4:15 p.m. close of
trading (or, if no closing price is reported, the last reported sale
price) per share on the New York Stock Exchange, Inc. (the "NYSE") on
such date;
(ii) if the Common Stock is not listed for trading on the NYSE
on any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities
exchange on which the Common Stock is so listed;
(iii) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by The NASDAQ Stock Market, Inc.;
44
(iv) 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
(v) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of the Common Stock on such
date from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
A "TRADING DAY" means a day on which the Common Stock (1) 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 (2) 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.
Each Holder of a PEPS Unit or a Treasury PEPS Unit, by its acceptance
thereof:
(i) irrevocably authorizes the Purchase Contract 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);
(ii) agrees to be bound by the terms and provisions thereof;
(iii) covenants and agrees to perform its obligations under
such Purchase Contracts;
(iv) consents to the provisions hereof;
(v) irrevocably authorizes the Purchase Contract Agent to
enter into and perform this Agreement and the Pledge Agreement on its
behalf as its attorney-in-fact; and
(vi) consents to, and agrees to be bound by, the Pledge of the
Preferred Securities, Subordinated Deferrable Notes, the Applicable
Ownership Interest (as specified in clause (A) of the definition of
such term) of 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
45
obligations. Each Holder of a PEPS Unit or a Treasury PEPS Unit, by its
acceptance thereof, further covenants and agrees, that to the extent and in the
manner provided in Section 5.02 and the Pledge Agreement, but subject to the
terms thereof, payments in respect of the Preferred Securities or the
Subordinated Deferrable Notes or the proceeds from the Treasury Securities or
the Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio at maturity on the Purchase Contract
Settlement Date, as the case may be, 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)
by the terms of this Agreement, the Purchase Contracts underlying such
Certificate, the Declaration and the Pledge Agreement and the transferor shall
be released from the obligations under this Agreement, the Purchase Contracts
underlying the Certificate 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 5.02 Payment of Purchase Price.
(a) (i) Unless a Tax Event Redemption has occurred or a Holder of a
PEPS Unit effects an Early Settlement of the underlying Purchase Contract in the
manner described in Section 5.07, each Holder who intends to pay in cash to
satisfy such Holder's obligations under the Purchase Contract shall notify the
Purchase Contract Agent by use of a notice in substantially the form of Exhibit
E hereto of his intention to pay in cash ("CASH SETTLEMENT") the Purchase Price
for the shares of Common Stock to be purchased pursuant to the related Purchase
Contract. In the case of a Cash Settlement that is not a Cash Merger Early
Settlement, such notice shall be given prior to 5:00 p.m. (New York City time)
on the seventh Business Day immediately preceding August 18, 2003. Prior to
11:00 a.m. (New York City time) on the next succeeding Business Day, the
Purchase Contract Agent shall notify the Collateral Agent and the Indenture
Trustee of the receipt of such notices from Holders intending to make a Cash
Settlement. In the case of a Cash Settlement that is a Cash Merger Early
Settlement, such notice shall be given prior to 5:00 p.m. (New York City time)
on the last Business Day of the applicable Early Settlement Week. Prior to 11:00
a.m. (New York City time) on the next succeeding Business Day, the Purchase
Contract Agent shall notify the Collateral Agent and the Indenture Trustee of
the receipt of such notices from Holders intending to make a Cash Settlement.
46
(ii) A Holder of a PEPS Unit who has so notified the Purchase
Contract Agent of his intention to effect a Cash Settlement in
accordance with paragraph 5.02(a)(i) above that is not a Cash Merger
Early Settlement shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m.
(New York City time) on the fifth Business Day immediately preceding
August 18, 2003, 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 Securities Intermediary. Any
cash received by the Collateral Agent shall be invested promptly by the
Securities Intermediary in Permitted Investments and paid to the
Company on the Purchase Contract Settlement Date in settlement of the
Purchase Contracts in accordance with the terms of this Agreement and
the Pledge Agreement. Any funds received by the Securities Intermediary
in respect of the investment earnings from such Permitted Investments
in excess of the Purchase Price for the shares of Common Stock to be
purchased by such Holder shall be distributed to the Purchase Contract
Agent when received for payment to the Holder.
(iii) If a Holder of a PEPS Unit fails to notify the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph 5.02(a)(i) above that is not a Cash Merger Early
Settlement, or does notify the Purchase Contract Agent as provided in
paragraph 5.02(a)(i) above of his intention to make a Cash Settlement
that is not a Cash Merger Early Settlement, but fails to make such
payment as required by paragraph 5.02(a)(ii) above, such Holder shall
be deemed to have consented to the disposition of the Pledged Preferred
Securities or the Pledged Subordinated Deferrable Notes pursuant to the
Remarketing as described in paragraph 5.02(b) below.
(iv) Promptly after 11:00 a.m. (New York City time) on the
fifth Business Day preceding the Purchase Contract Settlement Date, the
Purchase Contract Agent, based on notices received by the Purchase
Contract Agent pursuant to Section 5.02(a) hereof in connection with
Cash Settlements that are not Cash Merger Early Settlements and notice
from the Securities Intermediary regarding cash received by it prior to
such time in connection with such Cash Settlements, shall notify the
Collateral Agent and the Property Trustee of the aggregate number of
Preferred Securities or Subordinated Deferrable Notes to be tendered
for purchase in the Remarketing in a notice substantially in the form
of Exhibit F hereto.
(v) A Holder of a PEPS Unit who has so notified the Purchase
47
Contract Agent of his intention to effect a Cash Settlement in
accordance with paragraph 5.02(a)(i) above that is a Cash Merger Early
Settlement shall pay the Purchase Price to the Securities Intermediary
for deposit in the Collateral Account prior to 5:00 p.m. (New York City
time) on the last Business Day of the applicable Early Settlement Week,
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 Securities Intermediary. Any cash received by
the Collateral Agent prior to the last day of the applicable Early
Settlement Week shall be invested promptly by the Securities
Intermediary in Permitted Investments and paid to the Company on the
last day of the applicable Early Settlement Week in settlement of the
Purchase Contracts in accordance with the terms of this Agreement and
the Pledge Agreement. Any funds received by the Securities Intermediary
in respect of the investment earnings from such Permitted Investments
in excess of the Purchase Price for the shares of Common Stock to be
purchased by such Holder shall be distributed to the Purchase Contract
Agent when received for payment to the Holder.
(vi) If a Holder of a PEPS Unit notifies the Purchase Contract
Agent as provided in paragraph 5.02(a)(i) above of his intention to
make a Cash Settlement that is a Cash Merger Early Settlement, but
fails to make such payment as required by paragraph 5.02(a)(v) above,
such Holder shall be deemed to have consented to the redemption of the
Pledged Preferred Securities or the Pledged Subordinated Deferrable
Notes pursuant to Section 6 of the Pledge Agreement and in accordance
with the Cash Merger Event Redemption provision of the Declaration or
the corresponding redemption provision of the Pledged Subordinated
Deferrable Notes, as the case may be and the application of the
proceeds therefrom to the settlement of such Holder's obligations under
the Purchase Contracts. All remaining amounts shall promptly be
distributed to such Holder in accordance with the terms of the Pledge
Agreement.
(vii) Promptly after 11:00 a.m. (New York City time) on the
next Business Day immediately following the end of the Cash Merger
Settlement Week, the Purchase Contract Agent, based on notices received
by the Purchase Contract Agent pursuant to Section 5.02(a) hereof in
connection with Cash Settlements that are Cash Merger Early Settlements
and notice from the Securities Intermediary regarding cash received by
it prior to such time in connection with such Cash Settlements, shall
notify the Collateral Agent and the Property Trustee of the aggregate
number of Preferred Securities or Subordinated Deferrable Notes to be
tendered for purchase in
48
the applicable cash merger redemption in a notice substantially in the
form of Exhibit F hereto.
(viii) In the event of a consolidation or merger of the
Company with or into another Person, any merger of another Person into
the Company (other than a merger that does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock) which closes before June 15, 2003 and in which
30% or more of the total consideration paid to the Company's
shareholders consists of cash or cash equivalents (the closing of such
event, a "CASH MERGER EVENT") then a Holder of a Security may settle
his Purchase Contract in a Cash Settlement as described in Section
5.02(a)(i) or 5.02(d)(i) hereof (each, a "CASH MERGER EARLY
SETTLEMENT"), as applicable, during the one week period beginning on
the twenty-third Trading Day following the closing date of such merger
(the "EARLY SETTLEMENT WEEK"), at the applicable Settlement Rate. For
the purposes of this Section, the twenty-third Trading Day after the
closing of the merger or consolidation shall be deemed to be the
Purchase Contract Settlement Date for the purpose of determining the
Applicable Market Value and the deadline for submitting the notice to
settle early and the related cash payment shall be 5:00 p.m. (New York
City time) of the last Business Day of the Early Settlement Week.
(b) (i) In the case of Cash Settlements that are not Cash Merger Early
Settlements:
In order to dispose of the Preferred Securities or Subordinated
Deferrable Notes, PEPS Units Holders who have not notified the Purchase Contract
Agent of their intention to effect a Cash Settlement as provided in paragraph
5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed
to make such payment as required by paragraph 5.02(a)(ii) above, the Company
shall engage Morgan Stanley & Co. Incorporated, as Remarketing Agent (the
"REMARKETING AGENT"), pursuant to the Remarketing Agreement to sell such
Preferred Securities or Subordinated Deferrable Notes. In order to facilitate
the Remarketing, the Purchase Contract Agent, based on the notices specified in
Section 5.02(a)(iv), shall notify the Remarketing Agent, promptly after 11:00
a.m. (New York City time) on the fifth Business Day immediately preceding August
18, 2003, of the aggregate number of Preferred Securities or Subordinated
Deferrable Notes that are part of PEPS Units to be remarketed. Concurrently, the
Collateral Agent, pursuant to the terms of the Pledge Agreement, shall cause
such Preferred Securities or Subordinated Deferrable Notes to be presented to
the Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent and such
49
Preferred Securities or Subordinated Deferrable Notes, the Remarketing Agent
shall, on the third Business Day immediately preceding August 18, 2003, use
reasonable efforts to remarket such Preferred Securities or Subordinated
Deferrable Notes on such date at a price equal to 100.50% of the Stated Amount
($25.125) per Preferred Security or Subordinated Deferrable Note, as provided in
the Remarketing Agreement. The proceeds from the Remarketing shall be invested
by the Collateral Agent in Permitted Investments, in accordance with the Pledge
Agreement, and then applied to satisfy in full such PEPS Units Holders'
obligations to pay the Purchase Price for the shares of Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date. In
addition, $.125 per Preferred Security or Subordinated Deferrable Note of the
proceeds shall automatically be remitted to the Remarketing Agent for services
rendered in connection with the Remarketing (the "REMARKETING FEE").
If, in spite of using its reasonable efforts, the Remarketing Agent
cannot remarket the related Preferred Securities or Subordinated Deferrable
Notes of such Holders of PEPS Units at a price equal to 100.50% of the Stated
amount ($25.125), then the Remarketing Agent shall increase the distribution
rate on the Preferred Securities or the interest rate on the Subordinated
Deferrable Notes, as the case may be, so that the market value of such Preferred
Securities will equal $25.125. If the Remarketing Agent determines that it will
be able to remarket the related Preferred Securities or Subordinated Deferrable
Notes of such Holders of PEPS Units at a price in excess of 100.50% of the
Stated Amount ($25.125), then the Remarketing Agent shall decrease the
distribution rate on the Preferred Securities or the interest rate on the
Subordinated Deferrable Notes, as the case may be, so that the market value of
such Preferred Securities or Subordinated Deferrable Notes will be equal to
$25.125. If the Remarketing Agent cannot Remarket the Preferred Securities or
the Subordinated Deferrable Notes, as the case may be, after such increase or
decrease, the Remarketing shall be deemed to have failed (a "FAILED
REMARKETING"), an event of default shall be deemed to have occurred under this
Agreement and the Pledge Agreement and in accordance with the terms of the
Pledge Agreement, the Collateral Agent, for the benefit of the Company, shall
exercise its rights as a secured party with respect to such Preferred Securities
or Subordinated Deferrable Notes, including those actions specified in paragraph
5.02(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
Preferred Securities or Subordinated Deferrable Notes, any accrued and unpaid
distributions on such Preferred Securities or Subordinated Deferrable Notes
shall become payable by the Company to the Purchase Contract Agent for payment
to the Beneficial Owner of the PEPS Units to which such Preferred Securities or
Subordinated Deferrable Notes relate. The Company shall cause a notice of such
Failed Remarketing to be published on the second Business
50
Day immediately preceding the Purchase Contract Settlement Date in a daily
newspaper in the English language of general circulation in the City of New
York, which is expected to be The Wall Street Journal, and on Bloomberg News.
(ii) In the case of Cash Settlements that are Cash Merger
Early Settlements:
In order to dispose of the Preferred Securities or
Subordinated Deferrable Notes, at the end of the Business Day immediately
following the last day of the applicable Early Settlement Week, an event of
default shall be deemed to have occurred under this Agreement and the Pledge
Agreement and in accordance with the terms of the Pledge Agreement in respect of
PEPS Units of PEPS Units Holders who have notified the Purchase Contract Agent
of their intention to effect a Cash Settlement in respect of such PEPS Units, as
provided in paragraph 5.02(a)(i) above, but failed to make such payment as
required by paragraph 5.02(a)(v) above. The Collateral Agent, for the benefit of
the Company, shall exercise its rights as a secured party with respect to such
Preferred Securities or Subordinated Deferrable Notes, including those actions
specified in paragraph 5.02(c) below; provided, that if upon a such event of
default the Collateral Agent exercises such rights for the benefit of the
Company with respect to such Preferred Securities or Subordinated Deferrable
Notes, any accrued and unpaid distributions on such Preferred Securities or
Subordinated Deferrable Notes shall become payable by the Company to the
Purchase Contract Agent for payment to the Beneficial Owner of the PEPS Units to
which such Preferred Securities or Subordinated Deferrable Notes relate.
(c) With respect to any Preferred Securities or Subordinated Deferrable
Notes which are subject to a Failed Remarketing or an event of default described
in Section 5.02(b)(ii) above, the Collateral Agent for the benefit of the
Company reserves all of its rights as a secured party with respect thereto and,
subject to applicable law and paragraph 5.02(g) below, may, among other things,
(i) retain the Preferred Securities or Subordinated Deferrable Notes in full
satisfaction of the Holders' obligations under the Purchase Contracts, (ii) sell
the Preferred Securities or Subordinated Deferrable Notes in one or more public
or private sales or (iii) retain any redemption proceeds therefrom to the extent
required to satisfy the Holders' obligations under the Purchase Contracts.
(d) (i) Unless a Holder of a Treasury PEPS Units or PEPS Units (if a
Tax Event Redemption has occurred) effects an Early Settlement of the underlying
Purchase Contract through the early delivery of cash to the Purchase Contract
Agent in the manner described in Section 5.07, each Holder of a Treasury PEPS
Unit or PEPS Unit (if a Tax Event Redemption has occurred) who intends to pay in
cash shall
51
notify the Purchase Contract Agent by use of a notice in substantially the form
of Exhibit E hereto of his intention to make a Cash Settlement for the shares of
Common Stock to be purchased pursuant to the related Purchase Contract. In the
case of a Cash Settlement that is not a Cash Merger Early Settlement, such
notice shall be given prior to 5:00 p.m. (New York City time) on the second
Business Day immediately preceding August 18, 2003. Prior to 11:00 a.m. (New
York City time) on the next succeeding Business Day, the Purchase Contract Agent
shall notify the Collateral Agent of the receipt of such notices from such
Holders intending to make a Cash Settlement. In the case of a Cash Settlement
that is a Cash Merger Early Settlement, such notice shall be given prior to 5:00
p.m. (New York City time) on the last Business Day of the applicable Early
Settlement Week. Prior to 11:00 a.m. (New York City time) on the next succeeding
Business Day, the Purchase Contract Agent shall notify the Collateral Agent and
the Indenture Trustee of the receipt of such notices from Holders intending to
make a Cash Settlement. Treasury PEPS Unit holders may make Cash Settlements
only in integral multiples of 40 Treasury PEPS Units.
(ii) A Holder of a Treasury PEPS Unit or PEPS Units (if a Tax
Event Redemption has occurred) who has so notified the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph 5.02(d)(i) above that is not a Cash Merger Early
Settlement shall pay the Purchase Price to the Securities Intermediary
for deposit in the Collateral Account prior to 11:00 a.m. (New York
City time) on the Business Day immediately preceding August 18, 2003,
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 Securities Intermediary. Any cash received by
the Collateral Agent shall be invested promptly by the Securities
Intermediary 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 Securities Intermediary in respect
of the investment earnings from the investment in such Permitted
Investments in excess of the Purchase Price for the shares of common
stock to be purchased by such Holder shall be distributed to the
Purchase Contract Agent when received for payment to the Holder.
(iii) If a Holder of a Treasury PEPS Unit or Holder of a PEPS
Unit (if a Tax Event Redemption has occurred) fails to notify the
Purchase Contract Agent of his intention to make a Cash Settlement in
accordance with paragraph 5.02(d)(i) above that is not a Cash Merger
Early Settlement, or does notify the Purchase Contract Agent as
provided in paragraph 5.02(d)(i)
52
above of his intention to make a Cash Settlement that is not a Cash
Merger Early Settlement, but fails to make such payment as required by
paragraph 5.02(d)(ii) above, then upon the maturity of the Pledged
Treasury Securities or the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the
Treasury Portfolio held by the Securities Intermediary on the Business
Day immediately preceding the Purchase Contract Settlement Date, the
principal amount of the Treasury Securities or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio received by the
Securities Intermediary shall be invested promptly in Permitted
Investments. On the Purchase Contract Settlement Date, an amount equal
to the Purchase Price shall 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 (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio 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 shall cause the Securities
Intermediary to distribute such excess to the Purchase Contract Agent
for the benefit of the Holder of the related Treasury PEPS Unit or PEPS
Unit when received.
(iv) A holder of a Preferred Security or Subordinated Deferred
Note that is no longer part of a PEPS Unit may elect to have such
Preferred Security or Subordinated Deferrable Note, as the case may be,
remarketed. A holder making such an election must notify the Property
Trustee prior to 11:00 a.m. (New York City time) on the fifth Business
Day immediately preceding August 18, 2003, of the aggregate number of
Preferred Securities or Subordinated Deferrable Notes, as the case may
be, that are not part of PEPS Units to be remarketed. Any such notice
will be irrevocable and may not be conditioned upon the level at which
the Reset Rate is established in the Remarketing. Concurrently, the
Property Trustee shall cause such Preferred Securities or Subordinated
Deferrable Notes, as the case may be, to be presented to the
Remarketing Agent for Remarketing.
(v) A Holder of a Treasury PEPS Unit or PEPS Units (if a Tax
Event Redemption has occurred) who has so notified the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph 5.02(d)(i) above that is a Cash Merger Early Settlement
shall pay the Purchase Price to the Securities Intermediary for deposit
in the Collateral Account prior to 5:00 p.m. (New York City time) on
the last Business Day of
53
the applicable Early Settlement Week, 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
Securities Intermediary. Any cash received by the Collateral Agent
prior to the last Business Day of the applicable Early Settlement Week
shall be invested promptly by the Securities Intermediary 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 Securities Intermediary in respect of the investment earnings from
the investment in such Permitted Investments in excess of the Purchase
Price for the shares of common stock to be purchased by such Holder
shall be distributed to the Purchase Contract Agent when received for
payment to the Holder.
(vi) If a Holder of a Treasury PEPS Unit or Holder of a PEPS
Unit (if a Tax Event Redemption has occurred) notifies the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph 5.02(d)(v) above that is a Cash Merger Early Settlement
but fails to make such payment as required by paragraph 5.02(d)(ii)
above, then no event of default under this Agreement or the Pledge
Agreement and such Holder shall continue to own such Treasury PEPS Unit
or PEPS Unit as if such Holder had never elected to make a Cash
Settlement in connection with a Cash Merger Early Settlement.
(e) Any distribution to Holders of excess funds described above shall
be payable at the office of the Purchase Contract Agent in New York City
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
Security Register.
(f) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the terms of
the Pledge Agreement cause the Pledged Preferred Securities, Pledged
Subordinated Deferrable Notes, the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of
the Treasury Portfolio or the Pledged Treasury Securities, as the case
may be, underlying the relevant Security to be released from the
Pledge, free and clear of any security interest of the Company, and
transferred to the Purchase Contract Agent for delivery to the Holder
thereof or its designee as soon as practicable; and
54
(ii) subject to the receipt thereof, the Purchase Contract
Agent shall, by book-entry transfer or other appropriate procedures, in
accordance with written instructions provided by the Holder thereof,
transfer such Preferred Securities, Subordinated Deferrable Notes, or
the appropriate Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio or such
Treasury Securities, as the case may be (or, if no such instructions
are given to the Purchase Contract Agent by the Holder, the Purchase
Contract Agent shall hold such Preferred Securities, Subordinated
Deferrable Notes, or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio or such Treasury Securities, as the case may be, and any
interest payment thereon, in the name of the Purchase Contract Agent or
its nominee in trust for the benefit of such Holder until the
expiration of the time period specified in the abandoned property laws
of the relevant state).
(g) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent satisfied by Early Settlement
or Cash Settlement, are payable solely out of 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 the disposition of Collateral
and the Purchase Price.
(h) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates thereof to
the Holder of the related Security unless the Company shall have received
payment in full for the aggregate purchase price for the Common Stock to be
purchased thereunder in the manner herein set forth.
SECTION 5.03 Issuance of Shares of Common Stock.
(a) Unless a Termination Event, Cash Merger Early Settlement or an
Early Settlement shall have occurred, subject to Section 5.04(b), on the
Purchase Contract Settlement Date upon receipt of the aggregate Purchase Price
payable on all Outstanding Securities, the Company shall issue and deposit with
the Purchase Contract Agent, for the benefit of the Holders of the Outstanding
Securities, one or more certificates representing the shares of Common Stock
registered in the name of the Purchase Contract Agent (or its nominee) as
custodian for the Holders (such certificates for shares of 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.
55
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract 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 forthwith 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
5.09 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
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 Purchase
Contract 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.
(b) [Reserved]
SECTION 5.04 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 Common Stock in Common Stock, the Settlement Rate 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:
(i) 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
(ii) the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution,
56
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 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 issued in lieu of
fractions of shares of Common Stock. The Company shall not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company.
(2) In case the Company shall issue rights, warrants or options 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, warrants or options, to subscribe for or purchase shares of 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, warrants or options 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 of which:
(i) the numerator 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
(ii) the denominator 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 issued in lieu of
fractions of shares of Common Stock. The Company agrees that it shall not issue
any such rights, warrants or options in respect of shares of Common Stock held
in the treasury of the Company.
57
(3) In case outstanding shares of 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 shares of 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, warrants or options referred to
in paragraph (2) of this Section 5.04(a), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in paragraph
(1) of this Section 5.04(a)), 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 of which:
(i) the numerator 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 reasonably determined by the Board of Directors,
whose determination shall be conclusive and the basis for which shall
be described in a Board Resolution) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of
Common Stock; and
(ii) the denominator 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 5.04(a) shall not be applicable. In
the event that such dividend or distribution is not so paid or made, the
Settlement Rate shall again be adjusted to be the Settlement Rate which would
then be in effect if such dividend or distribution had not been declared.
(5) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding:
58
(i) any quarterly cash dividend on Common Stock to the extent
that the aggregate cash dividend per share of Common Stock in any
fiscal quarter does not exceed $.365 per share (the "Dividend
Threshold"), and
(ii) any dividend or distribution in connection with the
liquidation, dissolution or termination of the Company, whether
voluntary or involuntary),
then, in such case, the Settlement Rate shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on such record date by a fraction of
which:
(i) the numerator shall be the Current Market Price of Common
Stock on the record date less the amount of cash so distributed (and
not excluded as provided above) applicable to one share of Common
Stock; and
(ii) the denominator shall be the Current Market Price of
Common Stock,
such increase to be effective immediately prior to the opening of business on
the day following the record date; provided, however, that in the event the
portion of cash so distributed applicable to one share of Common Stock is equal
to or greater than the Current Market Price per share of Common Stock on the
record date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each holder of a Security shall have the right to receive upon
settlement of the Securities the amount of cash such Holder would have received
had such Holder settled each Security on the record date. In the event that such
dividend or distribution is not so paid or made, the Settlement Rate shall again
be adjusted to be the Settlement Rate which would then be in effect if such
dividend or distribution had not been declared. If any adjustment is required to
be made as set forth in this Section 5.04(a)(5) as a result of a distribution
that is a quarterly dividend, such adjustment shall be based upon the amount by
which such distribution exceeds the amount of the Dividend Threshold. If an
adjustment is required to be made as set forth in this Section 5.04(a)(5) above
as a result of a distribution that is not a quarterly dividend, such adjustment
shall be based upon the full amount of the distribution. The Dividend Threshold
shall be adjusted to give effect to any exchange or conversion of Common Stock
into the capital stock of a successor entity by multiplying the Dividend
Threshold by the quotient of one dividend by the rate at which the Common Stock
is to be exchanged or converted into such successor entity's capital stock.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of Common Stock shall expire
and such tender or exchange offer (as amended upon the expiration thereof) shall
require
59
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 as
herein defined) of an aggregate consideration having a fair market value (as
reasonably determined by the Board of Directors, whose determination shall be
conclusive and the basis for which shall be described in a Board Resolution)
that combined together with the aggregate of the cash plus the fair market value
(as reasonably determined by the Board of Directors, whose determination shall
be conclusive and the basis for which shall be 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 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 this paragraph (6) has been made, and
(II) the aggregate amount of any distributions to all holders of 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 (6) has been made, exceeds 15% 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) and (II) 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
60
"Purchased Shares").
(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 5.04(b) applies) shall be deemed to
involve:
(i) 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 shareholders entitled to receive such distribution"
and the "date fixed for such determination" within the meaning of
paragraph (4) of this Section); and
(ii) 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 date of
determination means the average of the daily Closing Prices for the five
consecutive Trading Days selected by the Company commencing not more than 30
Trading Days before, and ending not later than, the earlier of such date of
determination 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 Common Stock trades 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 thereof; 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 5.04(a), an adjustment shall
also be made to the Applicable Market Value solely to determine which
of clauses (i), (ii) or (iii) of the definition of
61
Settlement Rate in Section 5.01 will apply on the Purchase Contract Settlement
Date. Such adjustment shall be made by multiplying the Applicable Market Value
by a fraction of which the numerator shall be the Settlement Rate immediately
after such adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.04(a) and the denominator shall be the Settlement Rate
immediately prior to 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), (6), (7) or
(10) of this Section 5.04(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, but shall not be required to, 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 shares 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 reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
(1) 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 shares of Common
Stock outstanding immediately prior to the merger or consolidation are
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 share exchange of the Company with another
Person (other than in connection with a merger or acquisition);
(iv) any liquidation, dissolution or termination 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 be entitled to receive on the Purchase Contract Settlement Date or in
respect of an
62
applicable Early Settlement or applicable Cash Merger Early Settlement, 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 shares of Common Stock
issuable on account of each Purchase Contract if the Purchase Contract
Settlement Date or applicable Early 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, dissolution or termination of the
Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that each Holder of an Outstanding Security shall
have the rights provided by this Section 5.04(b). 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.
(c) All calculations and determinations pursuant to this Section 5.04
shall be made by the Company or its agent and the Purchase Contract Agent shall
have no responsibility with respect thereto.
63
SECTION 5.05 Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.04 and prepare and transmit to the Purchase
Contract Agent an Officers' Certificate setting forth the Settlement
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 5.04 (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 Purchase Contract 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 Purchase Contract Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares 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 Purchase Contract Agent makes no representation with respect thereto.
The Purchase Contract Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of 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 5.06 Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, and 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 Purchase Contract Agent
or the Company, if, prior to or on the Purchase Contract Settlement Date, a
Termination Event shall have occurred.
64
Upon and after the occurrence of a Termination Event, the Securities
shall thereafter represent the right to receive the Preferred Securities, the
Subordinated Deferrable Notes, the Treasury Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
forming part of such Securities, in accordance with the provisions of Section
5.02 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 Purchase Contract Agent, the Collateral Agent and the
Holders, at their addresses as they appear in the Security Register.
SECTION 5.07 Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.07, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("EARLY SETTLEMENT") on or prior to 5:00 p.m.
(New York City time) on the seventh Business Day immediately preceding the
Purchase Contract Settlement Date. Holders of Treasury PEPS Units may only
settle the related Purchase Contracts in integral multiples of 40 Purchase
Contracts. 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 to the Purchase Contract Agent at the Corporate Trust
Office an Election to Settle Early form (on the reverse side of the Certificate)
and any other documents requested by the Purchase Contract Agent and accompanied
by payment (payable to the Company in immediately available funds) 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 Early Settlement.
Except as provided in the immediately preceding sentence, no
payment 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 prior to or at 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
65
shall be adjusted in the same manner and at the same time as the Settlement Rate
is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(i) the shares of Common Stock issuable upon Early Settlement
of Purchase Contracts to be issued and delivered, together with payment
in lieu of any fraction of a share, as provided in Section 5.09; and
(ii) the related Preferred Securities, Subordinated Deferrable
Notes or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio,
in the case of PEPS Units, or the related Treasury Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio, in the case
of Treasury PEPS Units, to be released from the Pledge by the
Collateral Agent and transferred, in each case, to the Purchase
Contract Agent for delivery to the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Preferred Securities,
Subordinated Deferrable Notes, the appropriate Applicable Ownership Interest as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, or Treasury Securities, as the case may be, from the Securities
Intermediary, as applicable, the Purchase Contract Agent shall, in accordance
with the instructions provided by the Holder thereof on the Election to Settle
Early form (on the reverse of the Certificate evidencing the related
Securities):
(i) transfer to the Holder the Preferred Securities,
Subordinated Deferrable Notes, the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of
the Treasury Portfolio or Treasury Securities, as the case may be,
forming a part of such Securities; and
(ii) deliver to the Holder 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 5.09.
(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
Purchase Contract Agent shall
66
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.
(f) A Holder of a Security who effects Early Settlement may elect to
have the Preferred Securities or Subordinated Deferrable Notes, as the case may
be, no longer a part of a PEPS Unit, or Treasury PEPS Unit, as the case may be,
remarketed. A Holder making such an election must notify the Property Trustee
prior to 11:00 a.m. (New York City time) on the fifth Business Day immediately
preceding August 18, 2003, of the aggregate number of Preferred Securities or
Subordinated Deferrable Notes that are not part of PEPS Units or Treasury PEPS
Units, as the case may be, to be remarketed. Any such notice will be irrevocable
and may not be conditioned upon the level at which the Reset Rate is established
in the Remarketing. Concurrently, the Property Trustee shall cause such
Preferred Securities or Subordinated Deferrable Notes, as the case may be, to be
presented to the Remarketing Agent for Remarketing.
SECTION 5.08 Intentionally Omitted.
SECTION 5.09 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 Cash Merger Early Settlement or 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 share of Common Stock
which would otherwise be deliverable upon settlement of any Purchase Contracts
on the Purchase Contract Settlement Date or upon Cash Merger Early Settlement or
Early Settlement, the Company, through the Purchase Contract 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 Purchase Contract Agent from time to time with sufficient
funds to permit the Purchase Contract Agent to make all cash payments required
by this Section 5.09 in a timely manner.
SECTION 5.10 Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the
67
initial issuance and delivery of the shares of 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 Purchase Contract 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 6
REMEDIES
SECTION 6.01 Unconditional Right of Holders to Purchase
Shares of Common Stock.
Each Holder of a Security shall have the right, which is absolute and
unconditional, to purchase shares of Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of the
right to purchase shares of Common Stock, and such rights shall not be impaired
without the consent of such Holder.
SECTION 6.02 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 6.03 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
68
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 6.04 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 6.05 Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a Security, by
its acceptance of such Security 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 Purchase Contract Agent
for any action taken, suffered or omitted by it as Purchase Contract 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 costs 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 Purchase Contract 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 distributions on any Preferred Securities
or interest on any Subordinated Deferrable Notes 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 shares of Common Stock under the Purchase
Contracts constituting part of any Security held by such Holder.
SECTION 6.06 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
69
not hinder, delay or impede the execution of any power herein granted to the
Purchase Contract Agent or the Holders, but will suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE 7
THE PURCHASE CONTRACT AGENT
SECTION 7.01 Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(1) 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 or the Pledge Agreement against the Purchase Contract Agent; and
(2) in the absence of bad faith or gross negligence on its part, 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 Purchase Contract Agent and conforming
to the requirements of this Agreement or the Pledge Agreement, as applicable,
but in the case of any certificates or opinions which by any provision hereof
are specifically required to be furnished to the Purchase Contract Agent, the
Purchase Contract Agent shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement or the Pledge
Agreement, as applicable (but need not confirm or investigate the accuracy of
the mathematical calculations or other facts stated therein).
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Purchase Contract Agent from liability for its own
grossly negligent action, its own grossly negligent failure to act, 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 Purchase Contract 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 Purchase Contract Agent was negligent in ascertaining the pertinent
facts; and
(3) no provision of this Agreement or the Pledge Agreement shall
require
70
the Purchase Contract 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 indemnity satisfactory to the
Purchase Contract Agent is not provided to it.
(4) the Purchase Contract Agent shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities.
(c) Whether or not therein expressly so provided, every provision of
this Agreement and the Pledge Agreement relating to the conduct or affecting the
liability of or affording protection to the Purchase Contract Agent shall be
subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and deliver
the Pledge Agreement in its capacity as Purchase Contract Agent.
SECTION 7.02 Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Purchase Contract Agent has
actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of Securities, as their names and addresses appear in
the Security Register, notice of such default hereunder, unless such default
shall have been cured or waived.
SECTION 7.03 Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.01:
(1) the Purchase Contract Agent may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, Subordinated Note, 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;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' 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;
71
(3) whenever in the administration of this Agreement or the Pledge
Agreement the Purchase Contract Agent shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Purchase Contract Agent (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel of its
selection and the 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;
(5) the Purchase Contract 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 Purchase Contract Agent, in its discretion, and at the expense
of the Company, 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 Purchase Contract Agent shall
determine to make such further inquiry or investigation, it shall be given a
reasonable opportunity to examine the relevant books, records and premises of
the Company, personally or by agent or attorney and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(6) the Purchase Contract 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 Purchase Contract 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;
(7) the Purchase Contract Agent shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request or direction of any of the Holders pursuant to this Agreement, unless
such Holders shall have offered to the Purchase Contract Agent security or
indemnity satisfactory to the Purchase Contract Agent against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(8) the Purchase Contract Agent shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
72
(9) the Purchase Contract Agent shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer of the Purchase
Contract Agent has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Purchase Contract Agent
at the Corporate Trust Office of the Purchase Contract Agent, and such notice
references the Securities and this Agreement;
(10) the Purchase Contract Agent may request that the Company deliver
an Officers' 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 Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded; and
(11) the rights, privileges, protections, immunities and benefits given
to the Purchase Contract Agent, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Purchase Contract
Agent in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.
SECTION 7.04 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 Purchase Contract Agent assumes no
responsibility for their accuracy. The Purchase Contract 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 Purchase Contract
Agent shall not be accountable for the use or application by the Company of the
proceeds in respect of the Purchase Contracts.
SECTION 7.05 May Hold Securities.
Any Security Registrar or any other agent of the Company, or the
Purchase Contract 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 Security Registrar or such other agent, or the
Purchase Contract Agent. The Company may become the owner or pledgee of
Securities.
73
SECTION 7.06 Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder need not
be segregated from the other funds except to the extent required by law or
provided herein. The Purchase Contract Agent shall be under no obligation to
invest or pay interest on any money received by it hereunder except as otherwise
provided hereunder agreed in writing with the Company.
SECTION 7.07 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all services
rendered by it hereunder and under the Pledge Agreement as the Company and the
Purchase Contract Agent shall from time to time agree in writing;
(2) except as otherwise expressly provided for herein, to reimburse the
Purchase Contract Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Purchase Contract Agent in
accordance with any provision of this Agreement and the Pledge Agreement
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or willful misconduct; and
(3) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent for, and to hold it harmless against, any loss,
liability or expense incurred without gross negligence or willful misconduct 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 (whether asserted by the Company, a Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
SECTION 7.08 Corporate Purchase Contract Agent Required;
Eligibility.
There shall at all times be a Purchase Contract 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, New York City,
if there be such a corporation in
74
the Borough of Manhattan, New York City, 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 Purchase Contract 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 7.09 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract 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 Purchase
Contract Agent required by Section 7.10 shall not have been delivered to the
Purchase Contract Agent within 30 days after the giving of such notice of
resignation, the resigning Purchase Contract Agent may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of
the Holders of a majority in number of the Outstanding Securities delivered to
the Purchase Contract Agent and the Company.
(d) If at any time:
(1) the Purchase Contract Agent fails to comply with Section
310(b) of the TIA, as if the Purchase Contract 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;
(2) the Purchase Contract Agent shall cease to be eligible
under Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Holder; or
75
(3) the Purchase Contract Agent shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of
the Purchase Contract Agent or of its property shall be appointed or
any public officer shall take charge or control of the Purchase
Contract 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 Purchase Contract 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 Purchase Contract Agent and the appointment of a successor
Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Purchase
Contract Agent for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Purchase Contract Agent and shall comply with the applicable
requirements of Section 7.10. If no successor Purchase Contract 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, on behalf of itself and all others similarly situated, or the
Purchase Contract Agent may petition at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Purchase Contract
Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase Contract
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 Purchase Contract
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 Purchase
Contract Agent, every such successor Purchase Contract Agent so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Purchase
Contract Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Purchase Contract Agent shall become
effective and such successor Purchase Contract Agent, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies
and duties of the retiring Purchase Contract Agent; but, on the request of the
Company or the successor Purchase
76
Contract Agent, such retiring Purchase Contract Agent shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Purchase Contract Agent all the rights, powers and trusts of the retiring
Purchase Contract Agent and shall duly assign, transfer and deliver to such
successor Purchase Contract Agent all property and money held by such retiring
Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Purchase Contract Agent all such
rights, powers and agencies referred to in paragraph 7.10(a) of this Section.
(c) No successor Purchase Contract Agent shall accept its appointment
unless at the time of such acceptance such successor Purchase Contract Agent
shall be qualified and eligible under this Article.
SECTION 7.11 Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Purchase Contract 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 Purchase Contract
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Purchase Contract Agent, shall be the
successor of the Purchase Contract Agent hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, with 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 Purchase Contract Agent then in
office, any successor by merger, conversion or consolidation to such Purchase
Contract Agent may adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Purchase Contract Agent had itself authenticated and executed such
Securities.
SECTION 7.12 Preservation of Information; Communications
to Holders.
(a) The Purchase Contract Agent shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders received by the
Purchase Contract Agent in its capacity as Security Registrar.
77
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Purchase Contract Agent, and furnish to the Purchase Contract
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 Purchase Contract 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
Purchase Contract 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 Purchase Contract Agent.
Except to the extent otherwise expressly provided in this Agreement,
the Purchase Contract 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 Purchase Contract 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 Purchase Contract 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. Anything contained in
this Agreement to the contrary notwithstanding, in no event shall the Purchase
Contract Agent or its officers, employees or agents be liable under this
Agreement to any third party for indirect, special, punitive, or consequential
loss or damage of any kind whatsoever, including lost profits, whether or not
the likelihood of such loss or damage was known to the Purchase Contract Agent,
incurred without any act or deed that is found to be attributable to gross
negligence or willful misconduct on the part of the Purchase Contract Agent.
SECTION 7.14 Tax Compliance.
(a) The Company and the Purchase Contract Agent 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 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.
78
(b) The Purchase Contract Agent shall comply in accordance with the
terms hereof with any written direction received from the Company with respect
to the execution or certification of any required documentation and the
application of such requirements to particular payments or Holders or in other
particular circumstances, and may for purposes of this Agreement conclusively
rely on any such direction in accordance with the provisions of Section
7.01(a)(2) hereof.
(c) The Purchase Contract 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 8
SUPPLEMENTAL AGREEMENTS
SECTION 8.01 Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Purchase
Contract 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
Purchase Contract Agent, to:
(1) 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;
(2) evidence and provide for the acceptance of appointment
hereunder by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the
Company;
(4) make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.04(b); or
(5) except as provided for in Section 5.04, cure any
ambiguity, correct or supplement any provisions herein which may be
inconsistent with any other provisions herein, or make any other
provisions with respect to such matters or questions arising under this
Agreement, provided such action shall
79
not adversely affect the interests of the Holders.
SECTION 8.02 Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Securities voting together as one class, by Act of said Holders
delivered to the Company and the Purchase Contract Agent, the Company, when
authorized by a Board Resolution, and the Purchase Contract 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 in respect of the Securities; provided,
however, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each outstanding Purchase
Contract 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 PEPS Units to substitute Treasury Securities for the Pledged
Preferred Securities or Pledged Subordinated Deferrable Notes or the
Applicable Ownership Interest of the Treasury Portfolio or the rights
of Holders or Treasury PEPS Units to substitute Preferred Securities,
Subordinated Deferrable Notes or the Applicable Ownership Interest of
the Treasury Portfolio 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 shares of Common Stock upon settlement of any Purchase
Contract or change the Purchase Contract Settlement Date; 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
80
only the PEPS Units or the Treasury PEPS Units, then only the affected class of
Holders 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; and provided, further, that the unanimous consent of the
Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses (1)
through (5) above.
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 8.03 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 Purchase Contract Agent shall be
provided, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement. The Purchase Contract Agent may, but shall not be obligated to, enter
into any such supplemental agreement which affects the Purchase Contract Agent's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 8.04 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 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 8.05 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 Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract 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 Purchase
Contract Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and
81
authenticated, executed on behalf of the Holders and delivered by the Purchase
Contract Agent in exchange for outstanding Certificates.
ARTICLE 9
MERGER, CONSOLIDATION, SHARE EXCHANGE,
SALE OR CONVEYANCE
SECTION 9.01 Covenant Not to Merge, Consolidate, Enter into a Share
Exchange, Sell or Convey Property Except under Certain
Conditions.
The Company covenants that it will not merge, consolidate or enter into
a share exchange 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 be a corporation
organized and existing under the laws of the United States of America
or a State thereof or the District of Columbia and such corporation
shall expressly assume all the obligations of the Company under the
Purchase Contracts, this Agreement and the Pledge Agreement by one or
more supplemental agreements in form reasonably satisfactory to the
Purchase Contract Agent and the Collateral Agent, executed and
delivered to the Purchase Contract 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, consolidation or
share exchange, 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 9.02 Rights and Duties of Successor Corporation.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance and upon any such assumption by a
successor corporation in accordance with Section 9.01, 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 CMS Energy
82
Corporation, any or all of the Certificates evidencing Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Purchase Contract 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 Purchase Contract 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 Purchase Contract Agent for authentication and execution, and any
Certificate evidencing Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Purchase Contract Agent for that
purpose. All the Certificates issued shall in all respects have the 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 merger, consolidation, share exchange, 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 9.03 Officers' Certificate and Opinion of Counsel Given to
Purchase Contract Agent.
The Purchase Contract Agent, subject to Sections 7.01 and 7.03, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, share exchange, 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 merger, consolidation, share exchange, sale, assignment, transfer,
lease or conveyance have been met.
ARTICLE 10
COVENANTS
SECTION 10.01 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.
83
SECTION 10.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, New York City an
office or agency where Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement of the Purchase Contracts
on the Purchase Contract Settlement Date or in connection with a Cash Merger
Early Settlement or an 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
reestablishment of PEPS Units 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 Purchase Contract 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 Purchase Contract 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 Purchase Contract
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, New York City for such purposes. The Company will give
prompt written notice to the Purchase Contract 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 payment for the Securities the
Corporate Trust Office and appoints the Purchase Contract Agent at its Corporate
Trust Office as paying agent in such city.
SECTION 10.03 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 10.04 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
84
part of the Outstanding Securities will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
SECTION 10.05 Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within 140
days after the end of each fiscal year of the Company (which as of the date
hereof is December 31) ending after the date hereof, an Officers' Certificate
(one of the signers of which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company), stating
whether or not to the knowledge of the signers thereof the Company is in default
in the performance and observance of any of the terms, provisions and conditions
hereof, and if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
SECTION 10.06 ERISA.
Each Holder from time to time of the Securities that is a Plan hereby
represents that its acquisition of the PEPS Units and the holding of the same
satisfies the applicable fiduciary requirements of ERISA and that it is entitled
to exemption relief from the prohibited transaction provisions of ERISA and the
Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
[SIGNATURES ON THE FOLLOWING PAGE]
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CMS ENERGY CORPORATION
By:
--------------------------------------
Name: Alan M. Wright
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF NEW YORK,
as Purchase Contract Agent
By:
--------------------------------------
Name:
Title:
86
EXHIBIT A
FACE OF PEPS UNITS CERTIFICATE
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY 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 DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No.[ ]Cusip No.
--------
[Number of PEPS Units]
CMS ENERGY CORPORATION
CMS Energy Trust III
PEPS UNITS
This PEPS Units Certificate certifies that Cede & Co. is the registered
Holder of the number of PEPS Units set forth above. Each PEPS Unit consists of
(i) either (a) the beneficial ownership by the Holder of one Preferred Security
(the "PREFERRED
87
SECURITY") of CMS Energy Trust III, a Delaware statutory business trust (the
"TRUST"), having a stated liquidation amount of $25, subject to the Pledge of
such Preferred 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 (as specified in
clause (A) of the definition of such term) of 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 CMS Energy Corporation, a Delaware
corporation (the "COMPANY"). All capitalized terms used herein which are defined
in the Purchase Contract Agreement (as defined on the reverse hereof) have the
meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred 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,
constituting part of each PEPS Unit evidenced hereby has been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations of
the Holder under the Purchase Contract comprising part of such PEPS Unit. The
Pledge Agreement provides that all payments of the liquidation amount with
respect to any of the Pledged Preferred 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, or cash distributions on any
Pledged Preferred Securities (as defined in the Pledge Agreement) 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,
constituting part of the PEPS Units received by the Securities Intermediary
shall be paid by wire transfer in same day funds (i) in the case of (A) cash
distributions with respect to Pledged Preferred 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 liquidation amount with respect to any Preferred 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, that
have been released from the Pledge pursuant to the Pledge Agreement, to the
Purchase Contract Agent to the account designated by the Purchase Contract
Agent, no later than 2:00 p.m., New York City time, on the Business Day such
payment is received by the Securities Intermediary (provided that in the event
such payment is received by the Securities Intermediary 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
liquidation or redemption amount with respect to any of the Pledged Preferred
Securities or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition
88
of such term) of the Treasury Portfolio, to the Company on the Purchase Contract
Settlement Date (as described herein) in accordance with the terms of the Pledge
Agreement, in full satisfaction of the respective obligations of the Holders of
the PEPS Units of which such Pledged Preferred Securities or the Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, as the case may be, are a part under the Purchase
Contracts forming a part of such PEPS Units. Distributions on any Preferred
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 PEPS Unit evidenced hereby, which are payable
quarterly in arrears on August 18, November 18, February 18 and May 18 of each
year, commencing November 18, 2000 (a "PAYMENT DATE"), shall, subject to receipt
thereof by the Purchase Contract Agent from the Securities Intermediary, be paid
to the Person in whose name this PEPS Unit Certificate (or a Predecessor PEPS
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
PEPS Units Certificate to purchase, and the Company to sell, on August 18, 2003
(the "PURCHASE CONTRACT SETTLEMENT DATE"), at a price equal to $25 (the "STATED
AMOUNT"), a number of shares of Common Stock, $0.01 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 such occurred a Termination Event or a
Cash Merger Early Settlement or an Early Settlement with respect to the PEPS
Unit 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 shares of 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 liquidation amount with respect to any Pledged Preferred
Securities pursuant to the Remarketing 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, pledged to secure the obligations under
such Purchase Contract of the Holder of the PEPS Unit of which such Purchase
Contract is a part.
Distributions on the Preferred Securities and the Applicable Ownership
Interest (as specified in clause (B) of the definition of such term) will be
payable at the office of the Purchase Contract Agent in New York City or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto as such address appears on the PEPS Units Register.
Reference is hereby made to the further provisions set forth on the
reverse
89
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 Purchase Contract Agent by manual signature, this PEPS Units 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CMS ENERGY CORPORATION
By:
--------------------------------------
Name: Alan M. Wright
Title: Senior Vice President and Chief
Financial Officer
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: August 22, 2000
90
CERTIFICATE OF AUTHENTICATION
OF PURCHASE CONTRACT AGENT
This is one of the PEPS Units Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: THE BANK OF NEW YORK, as
Purchase Contract Agent
By:
-------------------------------------
Authorized Signatory
Dated: August 22, 2000
91
(FORM OF REVERSE OF PEPS UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of August 22, 2000 (as may be supplemented from
time to time, the "PURCHASE CONTRACT AGREEMENT"), between the Company and The
Bank of New York, as Purchase Contract Agent (including its successors
hereunder, the "PURCHASE CONTRACT 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 Purchase Contract Agent, the Company, and the
Holders and of the terms upon which the PEPS Units Certificates are, and are to
be, executed and delivered.
Unless a Cash Settlement or an Early Settlement has occurred, each
Purchase Contract evidenced hereby obligates the Holder of this PEPS Units
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 equal to the Settlement Rate, unless, prior to
or on 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 or an Early Settlement shall have occurred. The "SETTLEMENT RATE" is
equal to:
(1) if the Applicable Market Value (as defined below) is
greater than or equal to $ (the "THRESHOLD APPRECIATION PRICE"),
shares of Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
$ but greater than $ (the "FLOOR PRICE"), the number of shares of
Common Stock per Purchase Contract having a value, based on the
Applicable Market Value, equal to $25; and
(3) if the Applicable Market Value is less than or equal to $
shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement (and in each case rounded upward or downward to the nearest 1/10,000th
of a share).
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.09 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through
92
Early Settlement or Cash Settlement, shall obligate the Holder of the related
PEPS Unit to purchase at the Purchase Price, and the Company to sell, a number
of 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" per share of Common Stock on any date of
determination means:
(1) the closing sale price (or, if no closing price is
reported, the last reported sale price) per share on the New York Stock
Exchange, Inc. (the "NYSE") on such date;
(2) if Common Stock is not listed for trading on the NYSE on
any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities
exchange on which Common Stock is so listed;
(3) if Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by The NASDAQ Stock Market, Inc.;
(4) if Common Stock is not so reported, the last quoted bid
price for Common Stock in the over-the-counter market as reported by
the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of Common Stock on such date
from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
A "TRADING DAY" means a day on which Common Stock (1) 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 (2) 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 Common
Stock.
93
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this PEPS Units Certificate may pay the Purchase Price for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or from the proceeds of the
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio or a Remarketing or redemption of the
related Pledged Preferred Securities. A Holder of PEPS Units who does not
effect, on or prior to 11:00 a.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date (or in the event a
Tax Event Redemption has occurred, the Business Day prior to the Purchase
Contract Settlement Date), an effective Cash Settlement not in connection with a
Cash Merger Early Settlement, or, who does not effect on or prior to 5:00 p.m.
(New York City time) on the seventh Business Day prior to the Purchase Contract
Settlement Date, an effective Early Settlement, shall pay the Purchase Price for
the shares of Common Stock to be delivered under the related Purchase Contract
from the proceeds of the sale of the related Pledged Preferred Securities held
by the Collateral Agent. Such sale will be made by the Remarketing Agent
pursuant to the terms of the Remarketing Agreement on the third Business Day
prior to 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 Preferred Securities related to this PEPS
Units certificate, any accrued and unpaid distributions on such Pledged
Preferred Securities will become payable by the Company to the holder of this
PEPS Units Certificate in the manner provided for in the Purchase Contract
Agreement. A Holder of PEPS Units who does not effect, on or prior to 5:00 p.m.
(New York City time) on the last Business Day of the applicable Early Settlement
Week, an effective Cash Settlement in connection with a Cash Merger Early
Settlement, shall pay the Purchase Price for the shares of Common Stock to be
delivered under the related Purchase Contract from the proceeds of the Cash
Merger Early Redemption of the related Pledged Preferred Securities held by the
Collateral Agent. All amounts in excess of those required to settle such
Holder's obligations under the Purchase Contracts that are in default, including
Cash Merger Early Redemption amounts in excess of the stated liquidation amount
of the Pledged Preferred Securities and any accrued and unpaid distributions on
such Pledged Preferred Securities, will become payable by the Company to the
holder of this PEPS Units Certificate in the manner provided for in the Purchase
Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
94
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the PEPS Unit Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Preferred Security or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio forming a part of each PEPS Unit from the Pledge. A PEPS Unit shall
thereafter represent the right to receive the Preferred Security or the
appropriate Applicable Ownership Interest of the Treasury Portfolio forming a
part of such PEPS Unit in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, except as otherwise set forth
therein, the Purchase Contract Agent will be entitled to exercise the voting and
any other consensual rights pertaining to the Pledged Preferred Securities.
Except as otherwise set forth in the Pledge Agreement, upon receipt of notice of
any meeting at which holders of Preferred Securities are entitled to vote or
upon the solicitation of consents, waivers or proxies of holders of Preferred
Securities, the Purchase Contract Agent shall, as soon as practicable
thereafter, mail to the PEPS Units Holders a notice:
(1) containing such information as is contained in the notice
or solicitation;
(2) stating that each PEPS Unit Holder on the record date set
by the Purchase Contract Agent therefor (which, to the extent possible,
shall be the same date as the record date for determining the holders
of Preferred Securities entitled to vote) shall be entitled to instruct
the Purchase Contract Agent as to the exercise of the voting rights
pertaining to the Preferred Securities constituting a part of such
Holder's PEPS Unit; and
(3) stating the manner in which such instructions may be
given.
Upon the written request of the PEPS Unit Holders on such record date, the
Purchase Contract 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 Preferred Securities as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a PEPS Unit, the Purchase Contract Agent shall abstain from voting the
Preferred Security evidenced by such
95
PEPS Unit.
Upon the dissolution and liquidation of the Trust, a principal amount
of the Subordinated Deferrable Notes constituting the assets of the Trust and
underlying the Preferred Securities equal to the aggregate liquidation amount of
the Pledged Preferred Securities shall be delivered to the Securities
Intermediary in exchange for the Pledged Preferred Securities. Thereafter, the
Subordinated Deferrable Notes shall be held by the Securities Intermediary to
secure the obligations of each Holder of PEPS Units to purchase shares of Common
Stock under the Purchase Contracts constituting a part of such PEPS Units.
Following the dissolution and liquidation of the Trust, the Holders and the
Collateral Agent shall have such security interests, rights and obligations with
respect to the Subordinated Deferrable Notes as the Holders and the Collateral
Agent had in respect of the Pledged Preferred Securities, any reference herein
to the Preferred Securities shall be deemed to be a reference to the
Subordinated Deferrable Notes and any reference herein to the liquidation amount
of the Preferred Securities shall be deemed to be a reference to the principal
amount of the Subordinated Deferrable Notes.
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 Subordinated
Deferrable Notes shall be delivered to the Securities Intermediary in exchange
for the Pledged Preferred Securities. Thereafter, pursuant to the terms of the
Pledge Agreement, the Securities Intermediary will apply an amount equal to the
Redemption Amount of such Redemption Price to purchase on behalf of the Holders
of PEPS Units, the Treasury Portfolio and promptly (a) transfer the Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio to the Collateral Account to secure the obligations of
each Holder of PEPS Units to purchase shares of Common Stock under the Purchase
Contracts constituting a part of such PEPS Units, (b) transfer the Applicable
Ownership Interest (as specified in clause (B) of the definition of such term)
of the Treasury Portfolio to the Purchase Contract Agent for the benefit of the
Holders of such PEPS Units and (C) remit the remaining portion of such
Redemption Price to the Purchase Contract Agent for payment to the Holders of
such PEPS Units.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of PEPS Units and the Collateral
Agent shall have such security interest rights and obligations with respect to
the Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio as the Holder of PEPS Units and the
Collateral Agent had in respect of the Preferred Securities or Subordinated
Deferrable Notes, as the case may
96
be, subject to the Pledge thereof as provided in the Pledge Agreement and any
reference herein to the Preferred Securities shall be deemed to be a reference
to such Treasury Portfolio.
The PEPS Certificates are issuable only in registered form and only in
denominations of a single PEPS Unit and any integral multiple thereof. The
transfer of any PEPS Units Certificate will be registered and PEPS Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The PEPS Units 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 Purchase Contract
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 Preferred Securities, thereby creating
Treasury PEPS 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 PEPS Unit remains in effect, such
PEPS Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such PEPS Unit in respect of the Preferred
Securities and Purchase Contract constituting such PEPS Unit may be transferred
and exchanged only as a PEPS Unit.
The Holder of PEPS Units may substitute for the Pledged Preferred
Securities securing such Holder's obligations under the related Purchase
Contracts Treasury Securities in an aggregate principal amount equal to the
aggregate liquidation amount of the Pledged Preferred Securities in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement. From
and after such Collateral Substitution, each Security for which such Pledged
Treasury Securities secures the Holder's obligation under the Purchase Contract
shall be referred to as a "TREASURY PEPS UNIT". A Holder may make such
Collateral Substitution only in integral multiples of 40 PEPS Units for 40
Treasury PEPS Units.
A Holder of Treasury PEPS Units may recreate PEPS Units by delivering
to the Securities Intermediary Preferred Securities equal to the aggregate
principal amount of the Pledged Treasury Securities in exchange for the release
of such Pledged Treasury Securities in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement. A Holder may recreate PEPS Units in
integral multiples of 40 Treasury PEPS Units for 40 PEPS Units.
If a Tax Event Redemption has occurred, a PEPS Unit Holder may not
create Treasury PEPS Units, and a Treasury PEPS Unit Holder may not recreate a
PEPS
97
Unit.
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 Purchase
Contract 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 Purchase Contract Agent, the
Collateral Agent and the Holders, at their addresses as they appear in the PEPS
Units Register. Upon and after the occurrence of a Termination Event, the
Collateral Agent shall release the Preferred 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, 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 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 PEPS Units
Certificate, the Holder of this PEPS Units Certificate shall deliver to the
Purchase Contract Agent at the Corporate Trust Office an Election to Settle
Early form set forth below and any other documents requested by the Purchase
Contract Agent 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) $25 times (B) the
number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Preferred 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, 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 PEPS Unit as to which Early Settlement
is effected equal to shares of Common Stock per Purchase Contract (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 provided in
the Purchase Contract Agreement.
Upon registration of transfer of this PEPS Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such
98
transferee, except as may be required by the Purchase Contract 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
PEPS 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 PEPS Units Certificate, by its acceptance hereof,
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contracts forming part of the PEPS Units evidenced hereby on its 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 his obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract Agreement, authorizes the Purchase Contract
Agent to enter into and perform the Purchase Contract Agreement and the Pledge
Agreement on its behalf as its attorney-in-fact, and consents to the Pledge of
the Preferred 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, underlying this PEPS Units 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
aggregate liquidation amount of the Pledged Preferred 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, 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 be governed by, and construed in
accordance with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this PEPS Units Certificate is registered as the owner of the PEPS
Units evidenced
99
hereby for the purpose of receiving payments of distributions payable quarterly
on the Preferred 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 Purchase Contract Agent nor any such agent shall be affected by notice to
the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent.
100
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 of
-------------
TENANT: 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.
101
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- ----------------
- ------------------------------------------------------
(Please insert Social Security or Tazpayer I.D. or other Identifying Number of
Assignee)
- ------------------------------------------------------------------------------
- --
(Please Print or type Name and Address Including Postal Zip code of Assignee)
the within PEPS Units Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney , to transfer side PEPS Units
Certificates on the books of CMAS Energy Corporation and CMS Energy Trust III
with full power of substitution in the premises.
Dated:
------------------
Signaure:
-------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face
of the within PEPS Units Certificates in every
particular, without alteration or enlargement or any
charge whatsoever.
Signature Guarantee:
-----------------------------------
102
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of PEPS Units evidenced by
this PEPS Units 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 Please print name and address
your signature: of Register Holder:
- --------------------------------- --------------------------------
Name Name
- ---------------------------------
- ---------------------------------
Address Address
- --------------------------------- --------------------------------
- --------------------------------- --------------------------------
- --------------------------------- --------------------------------
Social Security or other
Taxpayer Identification
Number, if any
- ---------------------------------
103
SETTLEMENT INSTRUCTIONS
In connection with the Cash Merger Event dated , , the
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon settlement on or after the settlement date in respect of the
corresponding Cash Merger Early Settlement of the Purchase Contracts underlying
the number of PEPS Units evidenced by this PEPS Units Certificate specified
below 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)
Number of Securities evidenced hereby as to which Cash Merger Early Settlement
is being elected:
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 Please print name and address
your signature: of Register Holder:
- --------------------------------- --------------------------------
Name Name
- ---------------------------------
- ---------------------------------
Address Address
- --------------------------------- --------------------------------
- --------------------------------- --------------------------------
- --------------------------------- --------------------------------
104
Social Security or other
Taxpayer Identification
Number, if any ---------------------------------
Transfer Instructions for Pledged Preferred Securities or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, transferable
upon such Cash Merger Early Settlement:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
105
ELECTION TO SETTLE EARLY
The undersigned Holder of this PEPS Units 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 PEPS Units evidenced by this PEPS Units
Certificate specified below. The undersigned Holder directs that a certificate
for shares of 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 PEPS Units Certificate representing any PEPS 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 Preferred
Securities or the appropriate Applicable Ownership Interest of 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:
-------------------------------
106
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
-----------------------------------
If shares of Common Stock or PEPS Units REGISTERED HOLDER
Certificates are to be registered in the name
of and delivered to and Pledged Preferred
Securities, or the Applicable Ownership
Interest of the Treasury Portfolio, as the case
may be, 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 Preferred Securities or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, transferable
upon Early Settlement or a Termination Event:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
107
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
================================================================================
Number of PEPS
Amount of increase in Amount of decrease in Units evidenced by Signature of
Number of PEPS Units Number of PEPS Units this Global Certificate authorized officer of
evidenced by the Global evidenced by the Global following such Trustee or Securities
Date Certificate Certificate decrease or increase Custodian
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
- --------------- ------------------------ ------------------------- -------------------------- ------------------------
108
EXHIBIT B
FACE OF TREASURY PEPS CERTIFICATE
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY 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 DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No.[ ]Cusip No.
-----
[Number of Treasury PEPS Units]
CMS ENERGY CORPORATION
CMS ENERGY TRUST III
TREASURY PEPS UNITS
This Treasury PEPS Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Treasury PEPS Units set forth above. Each
109
Treasury PEPS Unit consists of (i) a 1/40 undivided beneficial ownership
interest of a Treasury Security having a principal amount at maturity equal to
$1,000, subject to the Pledge of 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 CMS Energy Corporation, a Delaware corporation (the
"COMPANY"). All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined on the reverse hereof) have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Treasury PEPS 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 part of such Treasury PEPS
Unit. Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PEPS Units Certificate to purchase, and the Company, to sell, on August
18, 2003, at a price equal to $25 (the "STATED AMOUNT"), a number of shares of
Common Stock, $0.01 par value ("COMMON STOCK"), of the Company, equal to the
Settlement Rate, unless prior to or on the Purchase Contract Settlement Date
there shall have occurred a Termination Event, a Cash Merger Early Settlement or
an Early Settlement with respect to the Treasury PEPS Unit 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 shares of 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 the proceeds from the
Treasury Securities at maturity pledged to secure the obligations of the Holder
under such Purchase Contract of the Treasury PEPS Unit of which such Purchase
Contract is a part.
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 Purchase Contract Agent by manual signature, this Treasury PEPS Units
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.
110
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CMS ENERGY CORPORATION
By:___________________________________
Name: Alan M. Wright
Title: Senior Vice President and Chief
Financial Officer
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: August 22, 2000
111
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury PEPS Units referred to in the
within-mentioned Purchase Contract Agreement.
By: THE BANK OF NEW YORK, as
Purchase Contract Agent
By:___________________________________
Authorized Signatory
Dated: August 22, 2000
112
(REVERSE OF TREASURY PEPS UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of August 22, 2000 (as may be supplemented from
time to time, the "PURCHASE CONTRACT AGREEMENT") between the Company and The
Bank of New York, as Purchase Contract Agent (including its successors
thereunder, herein called the "PURCHASE CONTRACT 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 Purchase Contract Agent, the Company and
the Holders and of the terms upon which the Treasury PEPS Units Certificates
are, and are to be, executed and delivered.
Unless a Cash Settlement or an Early Settlement has occurred, each
Purchase Contract evidenced hereby obligates the Holder of this Treasury PEPS
Units 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 equal to the Settlement Rate, unless 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 or
a Cash Merger Early Settlement or an Early Settlement shall have occurred. The
"SETTLEMENT RATE" is equal to:
(1) if the Applicable Market Value (as defined below) is
greater than or equal to $ (the "THRESHOLD APPRECIATION PRICE"), shares
of Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
$ but greater than $ (the "FLOOR PRICE"), the number of shares of
Common Stock per Purchase Contract having a value, based on the
Applicable Market Value, equal to $25; and
(3) if the Applicable Market Value is less than or equal to $
, then shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement (and in each case rounded upward or downward to the nearest 1/10,000th
of a share).
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.09 of the Purchase Contract
Agreement.
113
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Treasury PEPS Unit to purchase at the Purchase Price for cash, and the
Company to sell, a number of 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 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" per share of Common Stock on any date of
determination means the:
(1) closing sale price (or, if no closing price is reported,
the last reported sale price) per share on the New York Stock Exchange,
Inc. (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE
on any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities
exchange on which the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by The NASDAQ Stock Market, Inc.;
(4) 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
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of the Common Stock on such
date from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
A "TRADING DAY" means a day on which the Common Stock (1) 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 (2) 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.
114
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury PEPS Unit shall pay the Purchase Price for the shares of
the CommonStock purchased pursuant to each Purchase Contract evidenced hereby
either by effecting a Cash Settlement or an Early Settlement of each such
Purchase Contract or by applying a principal amount of the Pledged Treasury
Securities underlying such Holder's Treasury PEPS Unit equal to the Stated
Amount of such Purchase Contract to the purchase of the Common Stock. In the
case of a Cash Settlement that is not a Cash Merger Early Settlement, a Holder
of Treasury PEPS Unit who does not effect, prior to or on 11:00 a.m. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, an effective Cash Settlement or who does not effect on or prior
to 5:00 p.m. (New York City time) on the seventh Business Day prior to the
Purchase Contract Settlement Date an effective Early Settlement, shall pay the
Purchase Price for the shares of Common Stock to be issued under the related
Purchase Contract from the proceeds of the Pledged Treasury Securities. In the
case of a Cash Settlement that is a Cash Merger Early Settlement, a Holder who
does not effect, prior to 5:00 p.m. (New York City time) on the last Business
Day of the applicable Early Settlement Week, an effective Cash Settlement, shall
not be in default and shall continue to hold such Treasury PEPS Unit as if such
Holder had not elected to make such Cash Merger Early Settlement.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of 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 occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the Treasury PEPS Units 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 Treasury PEPS Unit. A Treasury PEPS Unit shall thereafter represent the
right to receive the interest in the Treasury Security forming a part of such
Treasury PEPS Unit, in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement.
The Treasury PEPS Units Certificates are issuable only in registered
form and only in denominations of a single Treasury PEPS and any integral
multiple thereof. The transfer of any Treasury PEPS Certificate will be
registered and Treasury PEPS Certificates may be exchanged as provided in the
Purchase Contract Agreement. The
115
Treasury PEPS 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 Purchase Contract
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 Preferred Securities or Subordinated Deferrable Notes, for Treasury
Securities, thereby recreating PEPS Units, shall be responsible for any fees or
expenses associated therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract underlying a Treasury PEPS Unit
remains in effect, such Treasury PEPS Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Treasury
PEPS Unit in respect of the Treasury Security and the Purchase Contract
constituting such Treasury PEPS Unit may be transferred and exchanged only as a
Treasury PEPS Unit.
A Holder of Treasury PEPS Units may recreate PEPS Units by delivering
to the Collateral Agent, Preferred Securities or Subordinated Deferrable Notes
with a liquidation amount, in the case of such Preferred Securities or with a
principal amount in the case of such Subordinated Deferrable Notes, equal to the
aggregate principal amount at maturity of the Pledged Treasury Securities in
exchange for the release of such Pledged Treasury Securities in accordance with
the terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such substitution, the Holder's Security shall be referred to as a "PEPS
UNIT". Any such creation of PEPS Units may be effected in multiples of 40
Treasury PEPS Units for 40 PEPS Units.
A Holder of PEPS Units may recreate Treasury PEPS Units by delivering
to the Collateral Agent Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation amount of the Pledged Preferred Securities or
the aggregate principal amount at maturity of the Pledged Subordinated
Deferrable Notes, as the case may be, in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. Any such recreation of
Treasury PEPS Units may be effected only in multiples of 40 PEPS Units for 40
Treasury PEPS Units.
If a Tax Event Redemption has occurred, a Treasury PEPS Unit Holder may
not recreate Peps Units, and a PEPS Unit Holder may not create a Treasury PEPS
Unit.
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 Purchase
Contract Agent or the
116
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 Purchase Contract Agent, the Collateral Agent and the
Holders, at their addresses as they appear in the Treasury PEPS Units 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. A Treasury PEPS Unit shall thereafter
represent the right to receive the interest in the Treasury Security forming a
part of such Treasury PEPS Unit, in accordance with the terms of the Purchase
Contract Agreement and 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 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 Treasury
PEPS Unit, the Holder of this Treasury PEPS Units Certificate shall deliver to
the Purchase Contract Agent at the Corporate Trust Office an Election to Settle
Early form set forth below and any other documents requested by the Purchase
Contract Agent 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) $25 times (B) the
number of Purchase Contracts with respect to which the Holder has elected to
effect 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 Treasury PEPS Unit as to which Early
Settlement is effected equal to shares of Common Stock per Purchase Contract
(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
provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury PEPS 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 Purchase Contract 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 Treasury PEPS Units
117
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 Treasury PEPS Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Treasury PEPS Units evidenced
hereby on its 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
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Treasury Securities underlying this Treasury PEPS
Units 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 aggregate principal 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.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Treasury PEPS Units Certificate is registered as the owner of
the Treasury PEPS 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 Purchase Contract Agent nor any such agent shall be affected by
notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the
118
Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent.
119
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 of
TENANT: 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 Treasury PEPS Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing attorney to transfer
said Treasury PEPS Units Certificates on the books of CMS Energy Corporation.
and CMS Energy Trust III 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 Treasury PEPS Units
Certificates in every particular,
without alteration or enlargement or
any change whatsoever.
Signature Guarantee:
120
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury PEPS Units
evidenced by this Treasury PEPS Units 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 REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please (i) print
such Person's name and address and Please print name and address of
(ii) provide a guarantee of your Registered Holder:
signature:
Name Name
Address Address
Social Security or other
Taxpayer Identification
Number, if any
121
SETTLEMENT INSTRUCTIONS
In connection with the Cash Merger Event dated , , the
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon settlement on or after the settlement date in respect of the
applicable Cash Merger Early Settlement of the Purchase Contracts underlying the
number of Treasury PEPS Units evidenced by this Treasury PEPS Units Certificate
specified below 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)
Number of Securities evidenced hereby as to which such Cash Merger Early
Settlement of the related Purchase Contracts is being elected:
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please (i) print Please print name and address of
such Person's name and address and Registered Holder:
(ii) provide a guarantee of your signature:
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:
122
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PEPS Units Certificate
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 Treasury PEPS Units evidenced by this
Treasury PEPS Units Certificate specified below. The option to effect Early
Settlement may be exercised only with respect to Purchase Contracts underlying
Treasury PEPS with an aggregate Stated Amount equal to $1,000 or an integral
multiple thereof. The undersigned Holder directs that a certificate for shares
of 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 Treasury PEPS Units Certificate representing any Treasury PEPS 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:
123
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person other
than the Holder, please (i) print such
Person's name and address and (ii) Please print name and address
provide a guarantee of your signature: 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:
124
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
================================================================================================================================
Date Amount of increase in Amount of decrease in Number of Treasury Signature of authorized
Number of Treasury Number of Treasury PEPS Units evidenced officer of Trustee or
PEPS Units evidenced PEPS Units evidenced by this Global Securities Custodian
by the Global by the Global Certificate following
Certificate Certificate such decrease or
increase
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
125
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: [_______ PEPS Units] [_______ Treasury PEPS Units] of CMS
Energy Corporation, a Delaware corporation (the "Company") and
CMS Energy Trust III.
The undersigned Holder hereby notifies you that it has delivered to The
Chase Manhattan Bank, as Securities Intermediary, for credit to the Collateral
Account, $ aggregate [principal] [liquidation] amount of [Preferred
Securities] [Subordinated Deferrable Notes] [Treasury Securities] in exchange
for the [Pledged Preferred Securities] [Pledged Subordinated Deferrable Notes]
[Pledged Treasury Securities] held in the Collateral Account, in accordance with
the Pledge Agreement, dated as of August 22, 2000 (the "Pledge Agreement";
unless otherwise defined herein, terms defined in the Pledge Agreement are used
herein as defined therein), between you, the Company, the Collateral Agent and
the Securities Intermediary. The undersigned Holder has paid 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 Preferred Securities] [Pledged Subordinated Deferrable
Notes] [Pledged Treasury Securities] related to such [PEPS Units] [Treasury PEPS
Units].
Date:
Signature
Signature Guarantee:
126
Please print name and address of Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address
127
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
- ---------------------------------
- ---------------------------------
Attention:
Telecopy:
Re: [ PEPS Units] [ Treasury PEPS Units]
of CMS Energy Corporation, a Delaware corporation (the
"COMPANY") and CMS Energy Trust III
Please refer to the Purchase Contract Agreement, dated as of August 22,
2000 (the "PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of PEPS Units and Treasury PEPS Units from time
to time.
We hereby notify you that a Termination Event has occurred and that
[the Subordinated Deferrable Notes][the Treasury Securities] underlying your
ownership interest in [PEPS Units] [Treasury PEPS Units] have been
released and are being held by us for your account pending receipt of transfer
instructions with respect to such [Subordinated Deferrable Notes][Treasury
Securities] (the "RELEASED SECURITIES").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released Securities.
Upon receipt of your instructions and upon transfer to us of your [PEPS
Units][Treasury PEPS Units] effected through book-entry or by delivery to us of
your [PEPS Units Certificate][Treasury PEPS Units Certificate], we shall
transfer the Released Securities by book-entry transfer or other appropriate
procedures, in accordance with your instructions. In the event you fail to
effect such transfer or delivery, the Released Securities and any distributions
thereon, shall be held in our name, or a nominee in trust for your benefit,
until such time as such [PEPS Units][Treasury PEPS Units] are transferred or
your [PEPS Units Certificate] [Treasury PEPS Units Certificate] is surrendered
or satisfactory evidence is provided that such [PEPS Units Certificate][Treasury
PEPS Units Certificate] has been destroyed, lost or stolen, together with any
indemnification that we or the Company may require.
128
Date: By: THE BANK OF NEW YORK
Name:
Title: Authorized Signatory
129
EXHIBIT E
NOTICE TO SETTLE BY CASH
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: [ PEPS Units] [Treasury PEPS Units] of CMS Energy
Corporation, a Delaware corporation (the "COMPANY") and CMS
Energy Trust III
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.02 of the Purchase Contract Agreement, dated as of August 22,
2000 (the "PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and you, 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 Securities Intermediary for deposit in the Collateral Account, prior to
[or on 11:00 a.m. (New York City time) on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date] [prior to 5:00 p.m. (New York
City time) on the last Business Day of the applicable Early Settlement Week] (in
lawful money of the United States by certified or cashiers' check or wire
transfer, in immediately available funds), $ as the Purchase Price for the
shares of Common Stock issuable to such Holder by the Company under the related
Purchase Contracts on the [Purchase Contract Settlement Date] [the settlement
date applicable to pending Cash Merger Early Settlement]. 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 [PEPS Units] [Treasury PEPS Units].
Date:
Signature
Signature Guarantee:
Please print name and address of Registered Holder:
130
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(Settlement of Purchase Contract through [Remarketing] [Redemption])
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Corporate Trust Department
Telecopy: (212) 946-8159
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Telecopy: (212) 815-5915
Re: PEPS Units of CMS Energy Corporation, a Delaware
corporation (the "COMPANY") and CMS Energy Trust III
Please refer to the Purchase Contract Agreement, dated as of August 22,
2000 (the "PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the Holders of PEPS Units from time to time.
In accordance with Section 5.02 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of PEPS Units
as of 11:00 a.m. (New York City time), [the fifth Business Day preceding the
Purchase Contract Settlement Date][the Business Day immediately following the
end of the Cash Settlement Week], we hereby notify you that ______ [Preferred
Securities] [Subordinated Deferrable Notes] are to be [tendered for purchase in
the Remarketing] [redeemed pursuant to Section 6 of the Pledge Agreement and in
accordance with the terms of the [Preferred Securities] [Subordinated Deferrable
Notes]].
Date: By: THE BANK OF NEW YORK
Name:
Title: Authorized Officer