EXHIBIT 1.1
DTE ENERGY COMPANY
COMMON STOCK
DEBT SECURITIES
COMMON STOCK PURCHASE CONTRACTS
COMMON STOCK PURCHASE UNITS
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UNDERWRITING AGREEMENT
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To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time DTE Energy Company, a Michigan corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its (i) shares of common stock, without par value
(the "Common Stock"), (ii) debt securities (the "Debt Securities"), (iii)
contracts to purchase Common Stock (the "Purchase Contracts") or (iv) units
consisting of Purchase Contracts and Debt Securities [substitute other
securities, as applicable] (the "Units"), or any combination thereof specified
in Schedule II to such Pricing Agreement (the Common Stock, the Debt Securities,
the Purchase Contracts and the Units are referred to herein collectively as the
"Securities"). The Securities specified in the applicable Pricing Agreement are
referred to as the "Designated Securities" with respect to such Pricing
Agreement. If specified in such Pricing Agreement, the Company may initially
sell to the Underwriters the Securities specified as the "Firm Designated
Securities" and may grant to the Underwriters the right to purchase at their
election additional Securities, for the sole purpose of covering
over-allotments, if any, in the sale of Designated Securities, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Option Securities"), in
which case the "Designated Securities" shall refer to the Firm Designated
Securities and any Option Securities. If applicable, "Underlying Securities"
shall mean the Common Stock issuable upon conversion [or other applicable
securities issuable upon exchange] of the Debt Securities or in accordance with
the terms of the Purchase Contracts, as applicable.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") or as subordinated indebtedness (the
"Subordinated Debt Securities") pursuant to an amended and restated indenture,
dated as of April 9, 2001 (the "Indenture"), as amended and supplemented by
various supplemental indentures, between the Company and The Bank of New York,
as trustee (the "Trustee"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion or exchange
provisions (and terms of the related Underlying Securities) and any other
variable terms established by or pursuant to the Indenture.
Each issue of Purchase Contracts will be governed by a Purchase
Contract Agreement (the "Purchase Contract Agreement"), between the Company and
the purchase contract agent named therein, as Purchase Contract Agent (the
"Purchase Contract Agent"), and evidenced by certificates ("Unit Certificates").
Pursuant to a pledge agreement (the "Pledge Agreement"), among the Company, the
Purchase Contract Agent and the collateral agent named therein, as collateral
agent (the "Collateral Agent"), the Debt Securities underlying the Units will be
pledged by the Purchase Contract Agent on behalf of the holders of the Units to
secure the holders' obligations to the Company under the Purchase Contract
underlying such Unit. The rights to purchase newly issued shares of Common Stock
of the Company under a Purchase Contract, together with the Debt Securities
[and/or other securities] securing such Purchase Contract, and the pledge
arrangements under the Pledge Agreement securing the foregoing obligations,
collectively constitute a Unit; provided, however, that after the Time of
Delivery (as defined herein), other Pledged Securities (as defined in the
Purchase Contract Agreement) may replace the Debt Securities and shall be
considered part of a Unit. Unless the context otherwise requires, for purposes
of this Agreement, the act of entering into a Purchase Contract underlying a
Unit, and purchasing a Debt Security underlying a Unit, shall be referred to as
a "purchase" of such Unit.
If specified in the applicable Pricing Agreement in connection with the
offer and sale of Purchase Contracts and Units, the Company will enter into a
remarketing agreement among the Company, the Purchase Contract Agent and a
nationally recognized investment banking firm chosen by the Company (the
"Remarketing Agent"), in connection with the remarketing of certain Debt
Securities. The Remarketing Agreement, the Purchase Contract Agreement and the
Pledge Agreement are referred to in this Agreement as the "Operative
Agreements". The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
with regard to any issuance of Debt Securities, in or pursuant to the Indenture
or, with regard to Purchase Contracts and Units, in or pursuant to the Operative
Agreements.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act
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without any firm being designated as its or their representatives. This
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount or aggregate number of the Designated Securities
or the Firm Designated Securities, as the case may be, the maximum aggregate
principal amount or number of Option Securities, if any, the initial public
offering price of such Designated Securities or Firm Designated Securities and
Option Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount or
number of such Designated Securities, as the case may be, to be purchased by
each Underwriter and shall set forth the date, time and manner of delivery of
such Designated Securities or Firm Designated Securities and Option Securities,
if any, and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth, as applicable, in the Indenture, the Operative Agreements,
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications, facsimile or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) Registration statements on Form S-3 (File Nos. 333-[ ],
333-[ ] and 333-[ ]), as amended by any pre-effective amendment thereto
(the "Initial Registration Statement"), in respect of the Securities
have been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which, if so filed,
became effective upon filing, no other document with respect to the
Initial Registration Statement or any document incorporated by
reference therein has heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act
(the "1933 Act Rules and Regulations"), each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b)
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Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective amendment thereto
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective but
excluding Forms T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission under the
Exchange Act (the "1934 Act Rules and Regulations"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the 1933 Act Rules and
Regulations and the 1934 Act Rules and Regulations, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
in which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable,
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and the 1933 Act Rules and Regulations and the 1934 Act Rules and
Regulations and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act, the 1933 Act Rules and Regulations and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its Significant
Subsidiaries (as defined below) has sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material change in the capital stock
or long-term debt of the Company or any of its Significant Subsidiaries
or any material adverse change, or any development involving a
prospective material adverse change (in either case not in the ordinary
course of business), in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; "Significant Subsidiary"
shall mean each subsidiary listed on Schedule III to the Pricing
Agreement; the only subsidiaries of the Company are (i) those
subsidiaries listed on Schedule III and (ii) certain other subsidiaries
which, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X of the 1933 Act Rules and Regulations;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
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(f) Each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the power
and authority (corporate and other) to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
and, except as described in the Registration Statement and the
Prospectus, each Significant Subsidiary of the Company holds all
material licenses, certificates and permits (or has applications
pending) from governmental authorities necessary for the conduct of its
business;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(h) Each of this Agreement, the Pricing Agreement and, if
applicable, the Remarketing Agreement, has been duly authorized,
executed and delivered by the Company.
(i) If the Designated Securities include Common Stock, such
Designated Securities have been, or as of the date of the applicable
Pricing Agreement will have been, duly authorized by the Company for
issuance pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities and, when issued and delivered by
the Company pursuant to this Agreement against payment of the
consideration thereunder specified in the applicable Pricing Agreement,
will be duly and validly issued, fully paid and non-assessable and will
not be subject to preemptive or other similar rights of any
securityholder of the Company; no holder of such Designated Securities
is or will be subject to personal liability solely by reason of being
such a holder; and the Common Stock will conform in all material
respects to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(j) If the Designated Securities include Debt Securities,
whether issued separately, or with Units, as the case may be, such
Designated Securities have been, or as of the date of the applicable
Pricing Agreement will have been duly authorized by the Company, and,
when the Designated Securities are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Securities, such Designated Securities will have been duly
and validly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, and enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, which will be substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized
and duly qualified under
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the Trust Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), the Indenture
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the Designated Securities
will conform, in all material respects to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(k) If the Underlying Securities related to the Designated
Securities include Common Stock, such Underlying Securities have been,
or as of the date of the applicable Pricing Agreement will have been,
duly authorized and reserved for issuance by the Company upon
conversion of the related Senior Debt Securities or Subordinated Debt
Securities or pursuant to the related Purchase Contracts, as
applicable. If the Underlying Securities include Common Stock, such
Underlying Securities, when issued upon such conversion or in
accordance with the Purchase Contracts, will be validly issued, fully
paid and non-assessable and will not be subject to preemptive or other
similar rights of any securityholder of the Company; no holder of such
Underlying Securities will be subject to personal liability solely by
reason of being such a holder; and the Common Stock will conform in all
material respects to the description thereof contained in the
Prospectus as amended or supplemented with respect to the Designated
Securities;
(l) If the Designated Securities include Purchase Contracts,
the Purchase Contracts, which Purchase Contracts are evidenced by the
Unit Certificates, have been, or as of the date of the applicable
Pricing Agreement will have been, duly and validly authorized by the
Company and, when issued and delivered by the Company pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and executed by the other parties thereto, will constitute
valid and binding obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Purchase Contracts and Unit Certificates will
conform in all material respects to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(m) If the Designated Securities include Units, the Units have
been, or as of the date of the applicable Pricing Agreement will have
been, duly and validly authorized by the Company and, when issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to the Designated Securities against payment therefor, will be
duly and validly issued, fully paid and non-assessable and will
constitute valid and binding obligations of the Company entitled to the
benefits of and subject to the obligations of the Purchase Contract
Agreement and enforceable in accordance with their terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Units will conform in
all material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
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(n) If the Designated Securities include Purchase Contracts
and Units, the Purchase Contract Agreement and the Pledge Agreement,
have been, or as of the date of the applicable Pricing Agreement will
have been, duly and validly authorized by the Company and, when issued
and delivered pursuant to this Agreement and the Pricing Agreement with
respect to the Designated Securities and executed and delivered by the
other parties thereto, will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; the Purchase Contract Agreement and the
Pledge Agreement conform or will conform in all material respects to
the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities; and the Pledge
Agreement creates, as collateral security for the performance when due
by the holders from time to time of the Units of their respective
obligations under the Purchase Contracts constituting part of such
Units, a legal, valid and perfected security interest (as that term is
defined in the Uniform Commercial Code, as adopted and currently in
effect in the State of New York), in favor of the Collateral Agent, in
the right, title and interest of such holders in the Pledged Securities
(as defined in the Pledge Agreement) constituting a part of such Units;
(o) The issue and sale of the Securities, and, as applicable,
the entry into the Purchase Contracts by the Company, the issue and
sale of the Underlying Securities, as applicable, and the execution,
delivery, performance and compliance by the Company with all of the
provisions of the Securities, this Agreement and as applicable, any
Pricing Agreement, the Indenture or the Operative Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Amended and Restated Articles of Incorporation or
By-laws of the Company or any material statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency, or body is required for the
issue and sale of the Securities, the entry into the Purchase Contracts
by the Company, as applicable, the issue and sale of the Underlying
Securities, as applicable, and the execution, delivery, performance and
compliance by the Company with all of the provisions of the Securities,
this Agreement, any Pricing Agreement, and, as applicable, the
Indenture or the Operative Agreements, the consummation by the Company
of the transactions contemplated by the Securities, this Agreement, any
Pricing Agreement or, as applicable, the Indenture or the Operative
Agreements, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
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Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(p) The statements set forth in the Prospectus under the
captions "Description of Capital Stock," "Description of Debt
Securities" and "Description of Common Stock Purchase Contracts and
Units" (or similar captions), insofar as they purport to constitute a
summary of the terms of the Securities and insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate and fair summaries in all material respects;
(q) Neither the Company nor any of its Significant
Subsidiaries is in violation of its Amended and Restated Articles of
Incorporation, or, as the case may be, articles of incorporation or
other equivalent document, or By-laws or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other material agreement or instrument to which it
is a party or by which it or any of its properties may be bound;
(r) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries; and, other than as
set forth in the Prospectus, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(s) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(t) The Company is a "holding company" (within the meaning of
the Public Utility Holding Company Act of 1935, as amended (the "PUHC
Act")) which is exempt from being required to seek approval to perform
its obligations under this Agreement and the Securities pursuant to
Rule 2 of the rules and regulations promulgated pursuant to the PUHC
Act;
(u) [The Designated Securities, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").]
9
(v) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(w) Deloitte & Touche LLP, who certified the financial
statements and supporting schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Company and its consolidated subsidiaries as required by
the Act and the 1933 Act Rules and Regulations;
(x) The financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The Company has no
material contingent obligation which is not disclosed in the
Registration Statement and the Prospectus. The supporting schedules, if
any, included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein;
(y) Other than as set forth in the Prospectus, the Company and
its Significant Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received (or have pending) all
permits, licenses or
10
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
amount or number of Option Securities set forth in such Pricing Agreement, on
the terms set forth therein, for the sole purpose of covering over-allotments,
if any, in the sale of the Firm Designated Securities. Any such election to
purchase Option Securities may be exercised by written notice from the
Representatives to the Company, given within a period specified in the Pricing
Agreement, setting forth the aggregate amount or number of Option Securities to
be purchased and the date on which such Option Securities are to be delivered,
as determined by the Representatives but in no event earlier than the First Time
of Delivery (as defined in Section 4 hereof) or, unless the Representatives and
the Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The amount or number of Option Securities to be added to the amount or
number of Firm Designated Securities to be purchased by each Underwriter as set
forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the amount or number of Option Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter; provided that, if the Company has not been so advised, the
amount or number of Option Securities to be so added shall be, in each case,
that proportion of Option Securities which the amount or number of Firm
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate amount or number of Firm Designated Securities,
subject to such adjustments as the Representatives in their discretion shall
make to eliminate any sales or purchases in less than authorized denominations
or of a fractional number of shares, as the case may be. The total amount or
number of Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate amount or number of Firm
Designated Securities set forth in Schedule I to such Pricing Agreement plus the
aggregate amount or number of Option Securities which the Underwriters elect to
purchase.
If applicable, the Underwriters agree to pledge to the Collateral
Agent, on behalf of the initial purchasers of the Purchase Contracts, the Debt
Securities underlying the Purchase
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Contracts. Such pledge shall be effected by the delivery to the Collateral Agent
in New York by the Underwriters of the Debt Securities to be pledged at the Time
of Delivery (as defined below) in accordance with the Pledge Agreement.
4. Certificates for the Designated Securities or Firm Designated
Securities and Option Securities, if any, to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company,
(i) with respect to the Designated Securities or Firm Designated Securities, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "First Time of Delivery" and (ii) with respect to the Option Securities, if
any, in the manner and at the time and date specified by the Representatives in
the written notice given by the Representatives of the Underwriters' election to
purchase such Option Securities, or at such other time and date as the
Representatives and the Company may agree upon in writing, each such time and
date, if not the First Time of Delivery, herein called a "Subsequent Time of
Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities and to file such
Prospectus pursuant to Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities unless
the Company has furnished the Representatives for such Securities with
a copy for their review and comment a reasonable time prior to filing
and has reasonably considered any comments of the Representatives; to
advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and for a period not exceeding nine months
and to furnish the Representatives with copies thereof in an amount as
the Representatives may reasonably request, in case a Representative is
required to deliver a prospectus after the expiration of nine months
after the Time of Delivery, the Company shall furnish the
Representative upon request, at the expense of the Representatives, a
reasonable quantity of a supplemental prospectus or a supplement to the
Prospectus complying with Section 10(c)(3) of the Act, to file promptly
all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension
of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any
12
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to promptly use every reasonable
effort to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply, so far as it is able,
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or as a securities dealer or to file a general
consent to service of process or to file annual reports in any
jurisdiction or to comply with any other requirements deemed by the
Company to be unduly burdensome;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than fifteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the 1933 Act Rules and Regulations (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the Time of Delivery for such Designated Securities, or such
other time as is specified in the Pricing Agreement, the
13
Company will not offer or sell, grant any option for the sale of, or
enter into any agreement to sell, any Securities of the Company
substantially similar to the Designated Securities (other than the
Designated Securities that are to be sold pursuant to such Pricing
Agreement or commercial paper program or [list benefit plans and stock
purchase plan] in the ordinary course of business or as otherwise
specified in the Pricing Agreement);
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act;
(g) If the applicable Pricing Agreement specifies that any
related Underlying Securities include Common Stock, the Company will
reserve and keep available at all times, free of preemptive or other
similar rights, a sufficient number of shares of Common Stock, for the
purpose of enabling the Company to satisfy any obligations to issue
such Underlying Securities upon conversion of the Senior Debt
Securities or Subordinated Debt Securities or pursuant to Purchase
Contracts, as applicable; and
(h) The Company will use its best efforts to effect the
listing of the Designated Securities and any related Underlying
Securities, prior to the Time of Delivery, on any national securities
exchange or quotation system if and as specified in the applicable
Pricing Agreement.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the reasonable
fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
reasonable expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Purchase Contract Agreement, any Pledge Agreement, any
Remarketing Agreement, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all reasonable expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and Legal Investment Surveys up to an aggregate amount not to
exceed $5,000; (iv) any fees charged by securities rating services for rating
the Securities; (v) any filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the
reasonable fees and expenses of any Trustee,
14
Purchase Contract Agent, Collateral Agent, Remarketing Agent or conversion agent
and any agent of any of the foregoing and the reasonable fees and disbursements
of counsel for any of the foregoing in connection with any Indenture, Operative
Agreement and the Securities (it being understood that, as among the Company and
such parties, such fees and expenses shall not exceed $5,000); (viii) the
reasonable cost and charges of any transfer agent or registrar or dividend
disbursing agent; (ix) the fees and expenses incurred in connection with any
listing of Designated Securities and any related Underlying Securities on a
securities exchange or quotation system; and (x) all other reasonable costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section; it being acknowledged and
agreed that the Underwriters shall have no responsibility for payment of any of
the foregoing costs, fees, disbursements and expenses, whether reasonable or
not. It is understood, however, that, except as provided in this Section, and
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the 1933 Act Rules and Regulations and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of
Delivery for such Designated Securities, with respect to validity of
the Designated Securities and such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Thomas A. Hughes, Esq., Associate General Counsel of the
Company, shall have furnished to the Representatives his written
opinion, dated the Time of Delivery for
15
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and all
of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) To the best of such counsel's knowledge after
due inquiry and other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(iv) Each of this Agreement, the Pricing Agreement,
and, if applicable, the Remarketing Agreement, with respect to
the Designated Securities has been duly authorized, executed
and delivered by the Company;
(v) If the Designated Securities include Common
Stock, such Designated Securities have been, or as of the date
of the applicable Pricing Agreement will have been, duly
authorized by the Company for issuance pursuant to this
Agreement and the Pricing Agreement with respect to such
Designated Securities and, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration therefor specified in the applicable Pricing
Agreement, will be duly and validly issued, fully paid and
non-assessable and will not be subject to preemptive or other
similar rights of any securityholder of the Company; no holder
of such Designated Securities is or will be subject to
personal liability solely by reason of being such a holder;
and the Common Stock conforms to the description thereof
contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
(vi) If the Designated Securities include Debt
Securities, whether issued separately or with Units, as the
case may be, such Designated Securities have been, or as of
the date of the applicable Pricing Agreement will have been
16
duly authorized by the Company, and, when the Designated
Securities are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly and
validly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture,
and enforceable in accordance with their terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors rights and to general equity principles, and will be
substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions
thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(vii) If the Underlying Securities related to the
Designated Securities include Common Stock, such Underlying
Securities have been, or as of the date of the applicable
Pricing Agreement will have been, duly authorized and reserved
for issuance by the Company upon conversion of the related
Senior Debt Securities or Subordinated Debt Securities or
pursuant to the related Purchase Contracts, as applicable. If
the Underlying Securities include Common Stock, such
Underlying Securities, when issued upon such conversion or in
accordance with the Purchase Contracts, as applicable, will be
validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any
securityholder of the Company; no holder of such Underlying
Securities will be subject to personal liability solely by
reason of being such a holder; and the Common Stock will
conform to the description thereof contained in the Prospectus
as amended or supplemented with respect to such Designated
Securities; the form of certificate used to evidence the
Designated Securities is in due and proper form and complies
with all applicable statutory requirements, with any
applicable requirements of the Company's Amended and Restated
Articles of Incorporation and by-laws and with the
requirements of the New York Stock Exchange;
(viii) If the Designated Securities include Purchase
Contracts, the Purchase Contracts, which Purchase Contracts
are evidenced by the Unit Certificates, have been, or as of
the date of the applicable Pricing Agreement will have been,
duly and validly authorized by the Company and, when issued
and delivered by the Company pursuant to this Agreement and
the Pricing Agreement with respect to such Designated
Securities and executed by the other parties
17
thereto, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
and the Purchase Contracts and Unit Certificates will conform
to the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated
Securities;
(ix) If the Designated Securities include Units, the
Units have been, or as of the date of the applicable Pricing
Agreement will have been, duly and validly authorized by the
Company and, when issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to the
Designated Securities against payment therefor, will be duly
and validly issued, fully paid and non-assessable and will
constitute valid and binding obligations of the Company
entitled to the benefits of and subject to the obligations of
the Purchase Contract Agreement and enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; the Unit Certificates are in the
form contemplated by the Purchase Contract Agreement and the
Units will conform to the descriptions thereof contained in
the Prospectus as amended or supplemented with respect to such
Designated Securities;
(x) If the Designated Securities include Purchase
Contracts and Units, the Purchase Contract Agreement and the
Pledge Agreement, have been, or as of the date of the
applicable Pricing Agreement will have been, duly and validly
authorized by the Company and, when issued and delivered
pursuant to this Agreement and the Pricing Agreement with
respect to the Designated Securities and executed and
delivered by the other parties thereto, will constitute valid
and binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; the Purchase Contract
Agreement and the Pledge Agreement conform or will conform to
the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated
Securities; and the Pledge Agreement creates, as collateral
security for the performance when due by the holders from time
to time of the Units of their respective obligations under the
Purchase Contracts constituting part of such Units, a legal,
valid and perfected security interest (as that term is defined
in the Uniform Commercial Code, as adopted and currently in
effect in the State of New York), in favor of the Collateral
Agent, in the right, title and interest of such holders in the
Pledged Securities (as defined in the Pledge Agreement)
constituting a part of such Units;
18
(xi) The issue and sale of the Securities, the entry
into the Purchase Contracts by the Company, the issue and sale
of the Underlying Securities, as applicable, and the
execution, delivery, performance, and the compliance by the
Company with all of the provisions of the Securities, this
Agreement and as applicable, any Pricing Agreement, the
Indenture or the Operative Agreements and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result
in any violation of the provisions of the Amended and Restated
Articles of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company or any of its properties, except that such counsel
need express no opinion as to rights to indemnity which may be
limited by applicable law; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency, or body is required for
the issue and sale of the Securities, the entry into the
Purchase Contracts by the Company, as applicable, the issue
and sale of the Underlying Securities, as applicable, and the
compliance by the Company with all of the provisions of the
Securities, this Agreement, any Pricing Agreement, and as
applicable, the Indenture, the Operative Agreements, and the
consummation by the Company of the transactions contemplated
by the Securities, this Agreement or any Pricing Agreement, or
as applicable, the Indenture or the Operative Agreements,
except such as have been, or will have been prior to the Time
of Delivery, obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(xii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its By-laws or articles of
incorporation or in default in the performance or observance
of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it or any of its properties may be bound;
(xiii) The statements set forth in the Prospectus
under the caption "Description of Capital Stock", "Description
of Debt Securities" and "Description of Common Stock Purchase
Contracts and Units" (or similar caption), insofar as they
purport to constitute a summary of the terms of the
Securities, and, insofar as they purport to
19
describe the provisions of the laws and documents referred to
therein, are accurate and fair summaries in all material
respects;
(xiv) The Company is not and, after giving effect to
the offering and sale of the Securities, will not be an
"investment company", as such term is defined in the
Investment Company Act;
(xv) The Company is a "holding company" (within the
meaning of the PUHC Act) which is exempt from being required
to seek approval to perform its obligations under this
Agreement and the Securities pursuant to Rule 2 of the rules
and regulations promulgated pursuant to the PUHC Act;
(xvi) [The Designated Securities, upon issuance, will
be excluded or exempted under, or beyond the purview of, the
Commodity Exchange Act, and the Commodity Exchange Act
Regulations;]
(xvii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein or Forms
T-1, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the 1933 Act Rules and Regulations and the
1934 Act Rules and Regulations; and such counsel has no reason
to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such documents were so filed, not misleading; and
(xviii) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules and other financial
data therein and that portion of the Registration Statement
which constitutes the Forms T-1, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Act, the 1933 Act Rules and
Regulations and the Trust Indenture Act and the rules and
regulations thereunder; although such counsel does not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (xiii) of this Section 7(c), such counsel has no
reason to believe that, as of its effective date,
20
the Registration Statement or any further amendment thereto
(including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission) made by the Company
prior to the Time of Delivery (other than the financial
statements and related schedules and other financial data
therein and that portion of the Registration Statement which
constitutes the Forms T-1, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules and
other financial data therein and that portion of the
Registration Statement which constitutes the Forms T-1, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules and other
financial data therein and that portion of the Registration
Statement which constitutes the Forms T-1, as to which such
counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading; and such counsel
does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) If applicable, counsel to the Purchase Contract Agent
shall have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Purchase Contract Agent is duly incorporated
and is validly existing as a [New York] banking association
with trust powers under the laws of [the State of New York]
with all necessary power and authority to execute, deliver and
perform its obligations under the Purchase Contract Agreement,
the Pledge Agreement and the Remarketing Agreement;
(ii) The execution, delivery and performance by the
Purchase Contract Agent of the Purchase Contract Agreement,
the Pledge Agreement and the
21
Remarketing Agreement, and the authentication and delivery of
the Designated Securities have been duly authorized by all
necessary action on the part of the Purchase Contract Agent.
The Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement have been duly executed and delivered by
the Purchase Contract Agent, and constitute the legal, valid
and binding obligations of the Purchase Contract Agent,
enforceable against the Purchase Contract Agent in accordance
with their respective terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is
considered in a proceeding at law or in equity);
(iii) The execution, delivery and performance of the
Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement by the Purchase Contract Agent do not
conflict with or constitute a breach of the charter or by-laws
of the Purchase Contract Agent; and
(iv) No consent, approval or authorization, or
registration with or notice to, any New York or federal
governmental authority or agency is required for the
execution, delivery or performance by the Purchase Contract
Agent of the Purchase Contract Agreement, the Pledge Agreement
and the Remarketing Agreement.
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at each Time of Delivery
for such Designated Securities, the independent accountants of the
Company who have certified the financial statements of the Company and
its consolidated subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives
a letter or letters, dated the date of the Pricing Agreement, to the
effect set forth in Annex II hereto, and a letter or letters dated each
Time of Delivery reaffirming the statements made in their letter or
letters dated the date of the Pricing Agreement, except that the
specified date referred to in such letter or letters delivered on such
Time of Delivery shall be a date not more than three business days
prior to such Time of Delivery, and with respect to such letter or
letters dated each such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance
satisfactory to the Representatives (a draft of the form of letter to
be delivered on the effective date of any post effective amendment to
the Registration Statement and as of each Time of Delivery is attached
as Annex II hereto);
(f) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated
22
by reference in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information
is given in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities there shall not have
been any material change in the capital stock or long-term debt of the
Company or any of its Significant Subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change (other than such as may have occurred in the ordinary course of
business), in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, the effect
of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities or Option Securities on the terms
and in the manner contemplated in the Prospectus as amended or
supplemented;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(i) If specified in the Pricing Agreement, the Designated
Securities at each Time of Delivery shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange.
23
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(k) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
(l) In the event that the Pricing Agreement provides for
Option Securities and the Underwriters exercise their option pursuant
to Section 3 hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company
hereunder shall be true and correct as of each Subsequent Time of
Delivery for the Option Securities, and the Underwriters shall have
received:
(i) Unless the Time of Delivery is the First Time of
Delivery, an officer's certificate, dated such Time of
Delivery, confirming that the certificate delivered at the
First Time of Delivery pursuant to Section 7(k) hereof remains
true and correct as of such Time of Delivery;
(ii) The favorable opinion of the Associate General
Counsel of the Company, in form and substance satisfactory to
the Representatives, dated such Time of Delivery, relating to
the Option Securities and otherwise substantially to the same
effect as the opinions required by Section 7(c) hereof;
(iii) The favorable opinion of counsel to the
Purchase Contract Agent, in form and substance satisfactory to
the Representatives, dated such Time of Delivery, relating to
the Option Securities and otherwise to the same effect as the
opinion required by Section 7(d) hereof;
(iv) The favorable opinion of counsel for the
Underwriters, dated such Time of Delivery, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 7(b) hereof; and
(v) Unless the Time of Delivery is the First Time of
Delivery, a letter or letters from Deloitte & Touche LLP (and
each other applicable independent accountants), in form and
substance satisfactory to the Underwriters and dated such Time
of Delivery, substantially the same in scope and substance as
the letter or letters furnished to the Underwriters at the
First Time of Delivery pursuant to
24
Section 7(e) hereof, except that the "specified date" in the
letters shall be a date not more than three business days
prior to such Time of Delivery.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any reasonable legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use therein;
and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
25
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other
26
shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one
hand or such Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a)If any Underwriter shall default in its obligation to
purchase the Designated Securities or Option Securities which it has agreed to
purchase under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Designated
Securities or Option Securities, as the case may be, then the Company shall be
entitled to a further period of thirty-six
27
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Designated Securities or Option Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount or aggregate number, as the case may be,
of such Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount or aggregate number, as
the case may be, of the Firm Designated Securities or Option
Securities, as the case may be, to be purchased at the respective Time
of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Firm Designated Securities or
Option Securities, as the case may be, and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount or number of Firm Designated Securities or
Option Securities, as the case may be, which such Underwriter agreed to
purchase under such Pricing Agreement) of the Firm Designated
Securities or Option Securities, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Designated Securities or Option Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Firm Designated Securities or Option
Securities, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate principal amount or number of the Firm
Designated Securities or Option Securities, as the case may be, to be
are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel,
reasonably incurred by the
28
Underwriters in making preparations for the purchase, sale and delivery
of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated
Securities except as provided in Sections 6 and 8 hereof.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Firm Designated Securities or
Option Securities covered by such Pricing Agreement except as provided in
Sections 6 and 8 hereof; but, if for any other reason Designated Securities are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
29
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
DTE Energy Company
By: ---------------------------
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
By: -----------------------------------
Name:
Title:
30
ANNEX I
PRICING AGREEMENT
[Underwriters]
As Representatives of the several
Underwriters named in Schedule I hereto,
________________, 200_
Ladies and Gentlemen:
DTE Energy Company, a Michigan corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ________________ (the "Underwriting Agreement"), between the
Company and ________________, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities" consisting of Firm Designated Securities and
any Option Securities the Underwriters may elect to purchase). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein (including
Schedule II hereto) and in the Underwriting Agreement incorporated herein by
reference, [(a)] the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, [the principal amount or
number] of Firm Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto [and, (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Option Securities, as
provided below, the Company agrees to issue and sell to each of the
I-1
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the purchase price to the Underwriters set forth in
Schedule II hereto a proportionate share of the [principal amount or number] of
Option Securities set forth in Schedule II below as to which such election shall
have been exercised. Any such election to purchase Option Securities may be
exercised in whole at anytime or in part from time to time by written notice
from the Representatives to the Company given within a period of 30 calendar
days after the date of this Pricing Agreement, setting forth in each case the
aggregate number of Option Securities to be purchased and the date on which such
Option Securities are to be delivered, as determined by the Representatives, but
in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
DTE Energy Company
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
[_________________].
By: _________________________________
Name:
Title:
On behalf of each of the Underwriters
I-2
SCHEDULE I
[PRINCIPAL
AMOUNT OR NUMBER] OF
DESIGNATED SECURITIES
TO BE
UNDERWRITER PURCHASED
[________________]................................. [$]
[________________].................................
[________________].................................
[________________].................................
[________________].................................
[________________].................................
[________________].................................
----------------
Total............................
================
I-3
SCHEDULE II
[COMMON STOCK]
TITLE:
NUMBER OF SHARES:
Number of Shares:
Maximum Number of Option Securities.:
PRICE TO PUBLIC:
[$..... per Share]
PURCHASE PRICE BY UNDERWRITERS:
[$..... per Share]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
BLACKOUT OR LOCK-UP PROVISIONS:
TIME OF DELIVERY:
__________ a.m. (New York City time),_____________________, 20__
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
LISTING REQUIREMENTS:
OTHER TERMS:
[DEBT SECURITIES]
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
[$]
I-4
PRICE TO PUBLIC:
[ ]% of the principal amount of the Designated Securities, plus
accrued interest, if any, from, [ ].
PURCHASE PRICE BY UNDERWRITERS:
[ ]% of the principal amount of the Designated Securities, plus
accrued interest from [ ]
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
[ ] a.m. (New York City time), [ , 20__]
BLACK-OUT PROVISIONS:
LISTING REQUIREMENTS:
INDENTURE:
Amended and Restated Indenture dated April 9, 2001, between the Company
and The Bank of New York, as Trustee, as supplemented by the
supplemental indenture dated as of ______________, 200_.
MATURITY:
The Designated Securities will mature _______, 200_
RANK:
INTEREST RATES: [FIXED, VARIABLE, FLOATING]
[ ]% per annum for the Designated Securities
INTEREST PAYMENT DATES:
[months and dates, commencing ________________, 200__]
I-5
REDEMPTION PROVISIONS:
CONVERSION OR EXCHANGE PROVISIONS:
SINKING FUND PROVISIONS:
[Floating Rate Provisions]
DEFEASANCE PROVISIONS:
ADDITIONAL REPRESENTATIONS AND WARRANTIES:
ADDITIONAL COVENANTS:
ADDITIONAL CLOSING CONDITIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
I-6
[STOCK PURCHASE CONTRACTS AND UNITS]
TITLE OF DESIGNATED SECURITIES:
AGGREGATE AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS TO PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
[ ] a.m. (New York City time), [ , 20___]
CLOSING LOCATION:
PAYMENT DATES:
TERMS OF PURCHASE CONTRACT:
I-7
NAMES AND ADDRESSES OF REPRESENTATIVES:
OTHER TERMS:
I-8
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
I-9
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the 1933 Act Rules and Regulations;
(i) In their opinion, the financial statements and any
supplementary financial information and schedules audited
(and, if applicable, financial forecasts and/or pro forma
financial information) examined by them and included or
incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the 1933 Act Rules and Regulations and
the 1934 Act Rules and Regulations; and, if applicable, they
have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the
consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies
of which have been furnished to the representative or
representatives of the Underwriters (the "Representatives")
such term to include an Underwriter or Underwriters who act
without any firm being designated as its or their
representatives;
(ii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-K
incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which; and on the basis of
specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the 1933 Act Rules and Regulations and the 1934 Act Rules and
Regulations, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the 1933 Act Rules and Regulations and the
1934 Act Rules and Regulations adopted by the Commission;
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(iii) The unaudited selected financial information with
respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements
for five such fiscal years included or incorporated by
reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading
of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books
of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the 1934 Act Rules and Regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements
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of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and
any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in clause (B) were
not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
1933 Act Rules and Regulations or the pro forma adjustments
have not been properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated
by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
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(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs (iii) and (vi)
above, they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information specified by the
Representatives which are derived from the general accounting
records of the Company and its subsidiaries and of MCN Energy
Group Inc. and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and of
MCN Energy Group Inc. and its subsidiaries and have found them
to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
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