EXHIBIT 99(a)
FILED AND EFFECTIVE JUNE 1, 2004
STATE OF MICHIGAN
MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH
BUREAU OF COMMERCIAL SERVICES -- CORPORATION DIVISION
LANSING, MICHIGAN
RESTATED ARTICLES OF INCORPORATION
(Profit Corporation)
Corporation Identification Number 485-283
These Restated Articles of Incorporation of CMS Energy Corporation (the
"Corporation") are executed pursuant to the provisions of Sections 641 through
651, Act 284, Public Acts of 1972, as amended, (the "Act"). These Restated
Articles of Incorporation were authorized by the Board of Directors at its
meeting held on May 28, 2004 without a vote of the shareholders pursuant to the
provisions of Section 642 of the Act in order to restate and integrate the
Articles and do not further amend the Articles as theretofore amended, and there
is no material discrepancy between those provisions and the provisions of these
Restated Articles.
The present name of the Corporation is CMS Energy Corporation. There are
no former names.
The date of filing the original Articles of Incorporation in Michigan was
February 26, 1987.
RESTATED ARTICLES OF INCORPORATION
The following Restated Articles of Incorporation supersede the original
Articles as amended and shall be the Articles of Incorporation of CMS Energy
Corporation.
ARTICLE I
The name of the corporation is CMS Energy Corporation (hereinafter called
the "Corporation").
ARTICLE II
The purpose or purposes for which the Corporation is organized is to
engage in any activity within the purposes for which corporations may be
organized under the Business Corporation Act of Michigan.
ARTICLE III
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 360,000,000, of which 10,000,000 shares, par
value $.01 per share, are of a class designated Preferred Stock ("Preferred
Stock"), and 350,000,000 shares, par value $.01 per share, are of a class
designated Common Stock ("Common Stock").
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The statement of the designations and the voting and other powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, of the Common Stock and of the Preferred Stock is as follows:
PREEMPTIVE RIGHTS
The holders of shares of Preferred Stock or of Common Stock shall have no
preemptive rights to subscribe for or purchase any additional issues of shares
of the capital stock of the Corporation of any class now or hereafter authorized
or any Preferred Stock, bonds, debentures, or other obligations or rights or
options convertible into or exchangeable for or entitling the holder or owner to
subscribe for or purchase any shares of capital stock, or any rights to exchange
shares issued for shares to be issued.
PREFERRED STOCK
The shares of Preferred Stock may be issued from time to time in one or
more series with such relative rights and preferences of the shares of any such
series as may be determined by the Board of Directors. The Board of Directors is
authorized to fix by resolution or resolutions adopted prior to the issuance of
any shares of each particular series of Preferred Stock, the designation,
powers, preferences and relative, participating, optional and other rights, and
the qualifications, limitations and restrictions thereof, if any, of such
series, including, but without limiting the generality of the foregoing, the
following:
(a) The rate of dividend, if any;
(b) The price at and the terms and conditions upon which shares may
be redeemed;
(c) The rights, if any, of the holders of shares of the series upon
voluntary or involuntary liquidation, merger, consolidation, distribution or
sale of assets, dissolution or winding up of the Corporation;
(d) Sinking fund or redemption or purchase provisions, if any, to be
provided for shares of the series;
(e) The terms and conditions upon which shares may be converted into
shares of other series or other capital stock, if issued with the privilege of
conversion; and
(f) The voting rights in the event of default in the payment of
dividends or under such other circumstances and upon such conditions as the
Board of Directors may determine.
No holder of any shares of any series of Preferred Stock shall be
entitled to vote in the election of directors or in respect of any other matter
except as may be required by the Michigan Business Corporation Act, as amended,
or as is permitted by the resolution or resolutions adopted by the Board of
Directors authorizing the issue of such series of Preferred Stock.
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Series Established By Articles
There is hereby established one series of Preferred Stock designated as
4.50% Cumulative Convertible Preferred Stock. The number of shares that shall
constitute such series shall be 5,000,000 shares.
4.50% Cumulative Convertible Preferred Stock
The Board of Directors hereby establishes a series of the preferred
stock of the Corporation and hereby states that the series' voting powers,
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof (in addition to
the provisions set forth in the Articles of Incorporation which are applicable
to the preferred stock of all series), shall be as follows:
1. Designation and Amount; Ranking.
(a) There shall be created from the 10,000,000 shares of preferred
stock, par value $0.01 per share, of the Corporation authorized to be issued
pursuant to the Articles of Incorporation, a series of preferred stock,
designated as the "4.50% Cumulative Convertible Preferred Stock," par value
$0.01 per share (the "4.50% Convertible Preferred Stock"), and the number of
shares of such series shall be 5,000,000. Such number of shares may be decreased
by resolution of the Board of Directors; provided that no decrease shall reduce
the number of shares of 4.50% Convertible Preferred Stock to a number less than
that of the shares of 4.50% Convertible Preferred Stock then outstanding plus
the number of shares issuable upon exercise of options or rights then
outstanding.
(b) The 4.50% Convertible Preferred Stock will, with respect to both
dividend rights and rights upon the liquidation, winding-up or dissolution of
the Corporation, rank (i) senior to all Junior Stock and (ii) on a parity with
all other Parity Stock.
2. Definitions. As used herein, the following terms shall have the
following meanings:
"Accumulated Dividends" shall mean, with respect to any share of
4.50% Convertible Preferred Stock, as of any date, the aggregate
accumulated and unpaid dividends on such share from and including the
most recent Dividend Payment Date to which dividends have been paid (or
the Issue Date, if such date is prior to the first Dividend Payment
Date) to but not including such date.
"Additional Dividends" shall have the meaning given to it in Section
3(b).
"Affiliate" shall have the meaning ascribed to it, on the date
hereof, under Rule 405 of the Securities Act.
"Agent Members" shall have the meaning given to it in Section
11(a)(ii).
"Board of Directors" shall mean the Board of Directors of the
Corporation or, with respect to any action to be taken by the Board of
Directors, any committee (special or otherwise) of the Board of
Directors duly authorized to take such action.
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"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in The City of New York are
authorized or required by law or executive order to close.
"Certificate of Designation" means the designation if the 4.50%
Convertible Preferred Stock in this Article III.
"Certificated 4.50% Convertible Preferred Stock" shall have the
meaning given to it in Section 4(f).
"Common Equity" of any Person means capital stock of such Person that
is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers
or others that will control the management or policies of such Person.
"Common Stock" shall mean the common stock, par value $0.01 per
share, of the Corporation, or any other class of stock resulting from
successive changes or reclassifications of such common stock consisting
solely of changes in par value, or from par value to no par value, or as
a result of a subdivision, combination or merger, consolidation or
similar transaction in which the Corporation is a constituent
corporation.
"Continuing Director" means a director who either was a member of
the Board of Directors on December 5, 2003 or who becomes a member of
the Board of Directors subsequent to that date and whose appointment,
election or nomination for election by the Corporation's shareholders is
duly approved by a majority of the Continuing Directors on the Board of
Directors at the time of such approval, either by a specific vote or by
approval of the proxy statement issued by the Corporation on behalf of
the Board of Directors in which such individual is named as nominee for
director.
"Conversion Agent" means the office or agency designated by the
Corporation where 4.50% Convertible Preferred Stock may be presented for
conversion. Initially, the Conversion Agent shall be the Corporation
located at One Energy Plaza, Jackson, Michigan 49201.
"Conversion Date" shall have the meaning given to it in Section 7(b).
"Conversion Notice" shall have the meaning given to it in Section
7(a).
"Conversion Price" shall mean $9.893 per share of Common Stock.
"Conversion Rate" shall mean the number of shares of Common Stock
issuable upon conversion of a share of 4.50% Convertible Preferred Stock
per Liquidation Preference. The initial Conversion Rate is 5.0541 shares
of Common Stock issuable upon conversion of a share of 4.50% Convertible
Preferred Stock per Liquidation Preference.
"Corporation Notice" shall have the meaning given to it in Section
4(e).
"Corporation Notice Date" shall have the meaning given to it in
Section 4(e).
"Distributed Assets or Securities" shall have the meaning given to it
in Section 7(f)(iii).
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"Dividend Payment Date" shall mean March 1, June 1, September 1 and
December 1 of each year, commencing March 1, 2004.
"Dividend Rate" shall have the meaning given to it in Section 3(a).
"Dividend Record Date" shall mean February 15, May 15, August 15 and
November 15 of each year.
"DTC" or "Depository" means The Depository Trust Company.
"Equity Interests" means any capital stock, partnership, joint
venture, member or limited liability or unlimited liability company
interest, beneficial interest in a trust or similar entity or other
equity interest or investment of whatever nature.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Fair Market Value" means the amount which a willing buyer would pay
a willing seller in an arm's length transaction.
A "Fundamental Change" shall be deemed to have occurred at such time
after the original issuance of the 4.50% Convertible Preferred Stock
that any of the following occurs: (i) the Common Stock or other capital
stock into which the 4.50% Convertible Preferred Stock is convertible is
neither listed for trading on a United States national securities
exchange nor approved for trading on the NASDAQ National Market or
another established automated over-the-counter trading market in the
United States; (ii) a "person" or "group" within the meaning of Section
13(d) of the Exchange Act, other than the Corporation, any subsidiary of
the Corporation or any employee benefit plan of the Corporation or any
such subsidiary, files a Schedule TO (or any other schedule, form or
report under the Exchange Act) disclosing that such person or group has
become the direct or indirect ultimate "beneficial owner" (as such term
is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person or group shall be deemed to have "beneficial ownership" of all
shares that such Person or group has the right to acquire whether such
right is exercisable immediately or only after the passage of time) of
Common Equity of the Corporation representing more than 50% of the
voting power of the Corporation's Common Equity; (iii) consummation of
any share exchange, consolidation or merger of the Corporation pursuant
to which the Common Stock will be converted into cash, securities or
other property or any sale, lease or other transfer (in one transaction
or a series of transactions) of all or substantially all of the
consolidated assets of the Corporation and its subsidiaries, taken as a
whole, to any Person (other than the Corporation or one or more of the
Corporation's subsidiaries); provided, however, that a transaction where
the holders of the Corporation's Common Equity immediately prior to such
transaction own, directly or indirectly, more than 50% of the aggregate
voting power of all classes of Common Equity of the continuing or
surviving corporation or transferee immediately after such event shall
not be a Fundamental Change; or (iv) Continuing Directors cease to
constitute at least a majority of the Board of Directors; provided,
however, that a Fundamental Change shall not be deemed to have occurred
in respect of any of the foregoing if either (A) the Last Reported Sale
Price per share of Common Stock for any five Trading Days within the
period of 10 consecutive Trading Days ending immediately before the
later of the Fundamental Change or the public announcement thereof shall
equal or exceed 105% of the Conversion Price in effect immediately
before the Fundamental Change or the public
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announcement thereof or (B) at least 90% of the consideration
(excluding cash payments for fractional shares) in the transaction or
transactions constituting the Fundamental Change consists of shares of
capital stock traded on a national securities exchange or quoted on the
NASDAQ National Market (or which shall be so traded or quoted when
issued or exchanged in connection with such Fundamental Change) (such
securities being referred to as "Publicly Traded Securities") and as a
result of such transaction or transactions the 4.50% Convertible
Preferred Stock becomes convertible into such Publicly Traded
Securities (excluding cash payments for fractional shares).
"Fundamental Change Purchase Date" shall have the meaning given to it
in Section 4(a).
"Fundamental Change Purchase Notice" shall have the meaning given to
it in Section 4(c).
"Fundamental Change Purchase Price" shall have the meaning given to
it in Section 4(a).
"Global 4.50% Convertible Preferred Stock" shall have the meaning
given to it in Section 11(a)(i).
"Holder" or "holder" shall mean a holder of record of the 4.50%
Convertible Preferred Stock.
"Issue Date" shall mean December 5, 2003, the original date of
issuance of the 4.50% Convertible Preferred Stock.
"Junior Stock" shall mean all classes of common stock of the
Corporation and each other class of capital stock or series of 4.50%
Convertible Preferred Stock established after the Issue Date, by the
Board of Directors, the terms of which do not expressly provide that
such class or series ranks senior to or on parity with the 4.50%
Convertible Preferred Stock as to dividend rights or rights upon the
liquidation, winding-up or dissolution of the Corporation.
"Last Reported Sale Price" of Common Stock on any date means the
closing sale price per share (or, if no closing sale price is reported,
the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on that
date as reported in composite transactions for the principal U.S.
securities exchange on which Common Stock is traded or, if the Common
Stock is not listed on a U.S. national or regional securities exchange,
as reported by the NASDAQ National Market. If the Common Stock is not
listed for trading on a U.S. national or regional securities exchange
and not reported by the NASDAQ National Market on the relevant date, the
Last Reported Sale Price shall be the last quoted bid price for Common
Stock in the over-the-counter market on the relevant date as reported by
the National Quotation Bureau or similar organization. If the Common
Stock is not so quoted, the Last Reported Sale Price will be the average
of the mid-point of the last bid and ask prices for the Common Stock on
the relevant date from each of at least three nationally recognized
independent investment banking firms selected by the Corporation for
this purpose.
"Liquidation Preference" shall mean, with respect to each share of
4.50% Convertible Preferred Stock, $50.
"Mandatory Conversion Date" shall have the meaning given to it in
Section 8(b).
"Market Price" means the average of the Last Reported Sales Price per
share of Common
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Stock for the 20 Trading Day period ending on the applicable date of
determination (if the applicable date of determination is a Trading Day
or, if not, then on the last Trading Day prior to such applicable date
of determination), appropriately adjusted to take into account the
occurrence, during the period commencing on the first of the Trading
Days during such 20 Trading Day period and ending on the applicable date
of determination, of any event that would result in an adjustment of the
Conversion Rate under this Certificate of Designation.
"Market Value" shall mean the average closing price of the Common
Stock for a five consecutive Trading Day period on the NYSE (or such
other national securities exchange or automated quotation system on
which the Common Stock is then listed or authorized for quotation or, if
the Common Stock is not so listed or authorized for quotation, an amount
determined in good faith by the Board of Directors to be the fair value
of the Common Stock).
"Maximum Conversion Rate" shall have the meaning given to it in
Section 7(f)(viii).
"NYSE" shall mean the New York Stock Exchange, Inc.
"Officer" means the Chairman of the Board of Directors, the
President, any Vice President, the Treasurer, the Secretary or any
Assistant Secretary of the Corporation.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Transfer Agent. The counsel may be an employee of
or counsel to the Corporation or the Transfer Agent.
"Parity Stock" shall mean any class of capital stock or series of
preferred stock established as of or after the Issue Date by the Board
of Directors, the terms of which expressly provide that such class or
series will rank on parity with the 4.50% Convertible Preferred Stock as
to dividend rights or rights upon the liquidation, winding-up or
dissolution of the Corporation.
"Paying Agent" means any Person authorized by the Corporation to pay
the dividends or Fundamental Change Purchase Price on any of the shares
of 4.50% Convertible Preferred Stock on behalf of the Corporation.
Initially, the Paying Agent shall be the Corporation.
"Person" shall mean any individual, corporation, general partnership,
limited partnership, limited liability partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Registration Default" shall have the meaning given to it in Section
3(b).
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of December 5, 2003, among the Corporation, Citigroup
Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated
and the certain other initial purchasers of the 4.50% Convertible
Preferred Stock.
"SEC" or "Commission" shall mean the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended.
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"Security Register" means the security register recording the holders
of 4.50% Convertible Preferred Stock kept at the offices of the
Corporation.
"Security Registrar" shall be the Person holding the Security
Register, and the Corporation will initially be designated as the
Security Registrar.
"Senior Stock" shall mean each class of capital stock or series of
preferred stock established after the Issue Date by the Board of
Directors, the terms of which expressly provide that such class or
series will rank senior to the 4.50% Convertible Preferred Stock as to
dividend rights or rights upon the liquidation, winding-up or
dissolution of the Corporation.
"Shelf Registration Statement" shall mean a shelf registration
statement filed with the SEC to cover resales of Transfer Restricted
Securities by holders thereof, as required by the Registration Rights
Agreement.
"Spin-Off Market Price" per share of Common Stock of the Corporation
or the Equity Interests in a Subsidiary or other business unit of the
Corporation on any day means the average of the daily Last Reported Sale
Prices for the 10 consecutive Trading Days commencing on and including
the fifth Trading Day after the ex date with respect to the issuance or
distribution requiring such computations. As used herein, the term "ex
date," when used with respect to any issuance or distribution, shall
mean the first date on which the security trades regular way on the NYSE
or such other national regional exchange or market in which the security
trades without the right to receive such issuance or distribution.
"Subsidiary" means a Person more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Corporation or
by one or more other Subsidiaries, or by the Corporation and one or more
other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power of the election of
directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Trading Day" means (i) if the applicable security is listed,
admitted for trading or quoted on the NYSE, the NASDAQ National Market
or another national security exchange, a day on which the NYSE, the
NASDAQ National Market or another national security exchange is open for
business or (ii) if the applicable security is not so listed, admitted
for trading or quoted, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law, regulation or executive order to close.
"Trading Exception" shall have the meaning given to it in Section
7(a)(ii).
"Trading Price" of the 4.50% Convertible Preferred Stock on any date
of determination means the average of the secondary market bid
quotations per share of 4.50% Convertible Preferred Stock obtained by
the Conversion Agent for $5,000,000 Liquidation Preference of the 4.50%
Convertible Preferred Stock at approximately 3:30 p.m., New York City
time, on such determination date from three independent nationally
recognized securities dealers the Corporation selects, provided that if
three such bids cannot reasonably be obtained by the Conversion Agent,
but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the
Conversion Agent, this one bid shall be used. If the Conversion Agent
cannot reasonably obtain at least one bid for
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$5,000,000 Liquidation Preference of the 4.50% Convertible Preferred
Stock from a nationally recognized securities dealer, then the Trading
Price will be deemed to be less than 95% of the product of the sale
price of Common Stock and the then applicable Conversion Rate.
"Transfer Agent" shall mean the Corporation's duly appointed transfer
agent for the 4.50% Convertible Preferred Stock. Initially, the
Corporation will be the Transfer Agent.
"Transfer Restricted Securities" shall mean each share of 4.50%
Convertible Preferred Stock (or the shares of Common Stock into which
such share of 4.50% Convertible Preferred Stock is convertible) until
(i) the date on which such security or its predecessor has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement, (ii) the date on which
such security or predecessor is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k)
under the Securities Act or (iii) the date that such 4.50% Convertible
Preferred Stock ceases to be outstanding.
"Voting Rights Class" shall have the meaning given to it in Section
5(a)(i).
"Voting Rights Triggering Event" shall mean the failure of the
Corporation to pay dividends on the 4.50% Convertible Preferred Stock
with respect to six or more quarterly periods (whether or not
consecutive).
"Voting Stock" shall mean, with respect to any Person, securities of
any class or classes of Capital Stock in such Person entitling the
holders thereof (whether at all times or only so long as no senior class
of stock has voting power by reason of contingency) generally to vote in
the election of members of the Board of Directors or other governing
body of such Person. For purposes of this definition, "Capital Stock"
shall mean, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of corporate
stock or partnership interests and any and all warrants, options and
rights with respect thereto (whether or not currently exercisable),
including each class of common stock and preferred stock of such Person.
3. Dividends.
(a) The holders of shares of the outstanding 4.50% Convertible Preferred
Stock shall be entitled, when, as and if declared by the Board of Directors out
of funds of the Corporation legally available therefor, to receive cumulative
cash dividends at the rate per annum of 4.50% per share on the Liquidation
Preference (equivalent to $2.25 per annum per share), payable quarterly in
arrears (the "Dividend Rate"). The Dividend Rate may be increased in the
circumstances described in Section 3(b) below. Dividends payable for each full
dividend period will be computed by dividing the Dividend Rate by four and shall
be payable in arrears on each Dividend Payment Date (commencing March 1, 2004)
for the quarterly period ending immediately prior to such Dividend Payment Date,
to the holders of record of 4.50% Convertible Preferred Stock at the close of
business on the Dividend Record Date applicable to such Dividend Payment Date.
Such dividends shall be cumulative from the most recent date as to which
dividends shall have been paid or, if no dividends have been paid, from the
Issue Date (whether or not in any dividend period or periods the Board of
Directors shall have declared such dividends or there shall be funds of the
Corporation legally available for the payment of such dividends) and shall
accumulate on a day-to-day basis, whether or not earned or declared, from and
after the Issue Date. Dividends payable for any partial dividend period shall be
computed on the basis of days elapsed over a 360-day year consisting of twelve
30-
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day months. Accumulated unpaid dividends accrue and cumulate dividends at the
annual rate of 4.50% and are payable in the manner provided in this Section 3.
(b) If (i) by November 5, 2004, the Shelf Registration Statement has not
been filed with the Commission, (ii) by March 5, 2005, the Shelf Registration
Statement has not been declared effective by the Commission, (iii) after the
Shelf Registration Statement has been declared effective the Corporation fails
to file a post-effective amendment, prospectus supplement, amendment or
supplement to any document incorporated by reference into such prospectus or
document if required by applicable law with the SEC within five business days
after a Holder provides the Corporation with certain required information, if
such filing is necessary to enable the Holder to deliver the prospectus to
purchasers of such Holder's Transfer Restricted Securities, (iv) the Shelf
Registration Statement ceases to be effective or fails to be usable without
being succeeded within 30 days by a post-effective amendment or an additional
registration statement filed and declared effective (other than as permitted in
(iii) above) pursuant to the Exchange Act that cures the failure of the
registration statement to be effective or usable, and (v) the aggregate duration
of any suspension periods in any period exceeds certain limits described in the
Registration Rights Agreement (each such event referred to in clauses (i), (ii),
(iii), (iv) and (v) a "Registration Default"), additional dividends shall
accumulate on the 4.50% Convertible Preferred Stock, from and including the date
on which any such Registration Default shall occur to, but excluding, the date
on which the Registration Default has been cured, at the rate of 0.25% per year
for the first 90 days following such date and at a rate of 0.50% per year
thereafter ("Additional Dividends"). With respect to shares of Common Stock
issued upon conversion of the 4.50% Convertible Preferred Stock, Additional
Dividends will accumulate on the then applicable conversion price from and
including the date on which any such Registration Default shall occur to, but
excluding, the date on which the Registration Default has been cured, at the
rate of 0.25% per year for the first 90 days following such date and at a rate
of 0.50% per year thereafter. Except as mentioned above, the Corporation will
have no other liabilities for monetary damages with respect to its registration
obligations. The receipt of Additional Dividends will be the sole monetary
remedy available to a Holder if the Corporation fails to meet these obligations.
(c) No dividend will be declared or paid upon, or any sum set apart for
the payment of dividends upon, any outstanding share of the 4.50% Convertible
Preferred Stock with respect to any dividend period unless all dividends for all
preceding dividend periods have been declared and paid or declared and a
sufficient sum set apart for the payment of such dividend upon all outstanding
shares of 4.50% Convertible Preferred Stock.
(d) No dividends or other distributions (other than a dividend or
distribution payable solely in shares of Parity Stock or Junior Stock (in the
case of Parity Stock) or Junior Stock (in the case of Junior Stock) and other
than cash paid in lieu of fractional shares) may be declared, made or paid, or
set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity
Stock or Junior Stock be redeemed, purchased or otherwise acquired for any
consideration (or any money paid to or made available for a sinking fund for the
redemption of any Parity Stock or Junior Stock) by or on behalf of the
Corporation (except by conversion into or exchange for shares of Parity Stock or
Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of
Junior Stock)), unless full Accumulated Dividends shall have been or
contemporaneously are declared and paid, or are declared and a sum sufficient
for the payment thereof is set apart for such payment, on the 4.50% Convertible
Preferred Stock and any Parity Stock for all dividend payment periods
terminating on or prior to the date of such declaration, payment, redemption,
purchase or acquisition. Notwithstanding the foregoing, if full dividends have
not been paid on the 4.50% Convertible Preferred Stock and any Parity Stock,
dividends may be declared and paid on the 4.50% Convertible Preferred Stock and
such Parity Stock so long as the dividends are declared and paid pro rata so
that the amounts of dividends declared per share on the 4.50% Convertible
Preferred Stock and such
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Parity Stock will in all cases bear to each other the same ratio that
accumulated and unpaid dividends per share on the shares of 4.50% Convertible
Preferred Stock and such other Parity Stock bear to each other.
(e) Holders of shares of 4.50% Convertible Preferred Stock shall not be
entitled to any dividends on the 4.50% Convertible Preferred Stock, whether
payable in cash, property or stock, in excess of full cumulative dividends and
Additional Dividends (if any).
(f) The holders of shares of 4.50% Convertible Preferred Stock at the
close of business on a Dividend Record Date will be entitled to receive the
dividend payment on those shares on the corresponding Dividend Payment Date
notwithstanding the subsequent conversion thereof or the Corporation's default
in payment of the dividend due on that Dividend Payment Date. However, shares of
4.50% Convertible Preferred Stock surrendered for conversion during the period
between the close of business on any Dividend Record Date and the close of
business on the Business Day immediately preceding the applicable Dividend
Payment Date must be accompanied by payment of an amount equal to the dividend
payable on the shares on that Dividend Payment Date; provided, however, that no
such payment need be made if (1) the Corporation has specified a Mandatory
Conversion Date that is after a Dividend Record Date and on or prior to the
immediately following Dividend Payment Date or (2) any accumulated and unpaid
dividends exist at the time of conversion with respect to such shares of 4.50%
Convertible Preferred Stock to the extent of such accumulated and unpaid
dividends. A holder of shares of 4.50% Convertible Preferred Stock on a Dividend
Record Date who (or whose transferee) tenders any shares for conversion on the
corresponding Dividend Payment Date will receive the dividend payable by the
Corporation on the 4.50% Convertible Preferred Stock on that date, and the
converting holder need not include payment in the amount of such dividend upon
surrender of shares of 4.50% Convertible Preferred Stock for conversion. Except
as provided above with respect to a voluntary conversion pursuant to Section 7,
the Corporation shall make no payment or allowance for unpaid dividends, whether
or not in arrears, on converted shares or for dividends on the shares of Common
Stock issued upon conversion.
(g) In any case where any Dividend Payment Date or Conversion Date
(including upon the occurrence of a Fundamental Change) of any 4.50% Convertible
Preferred Stock shall not be a Business Day, at any place of payment, then
payment of dividends (and Additional Dividends, if any) need not be made on such
date, but may be made on the next succeeding Business Day at such place of
payment with the same force and effect as if made on the dividend payment date
or Conversion Date (including upon the occurrence of a Fundamental Change); and
no interest shall accumulate on the amount so payable for the period from and
after such Dividend Payment Date or Conversion Date, as the case may be, to such
Business Day.
(h) The Paying Agent shall return to the Corporation upon written
request any money or property held by it for the payment of any amount with
respect to the 4.50% Convertible Preferred Stock that remains unclaimed for two
years, provided, however, that the Paying Agent, before being required to make
any such return, shall at the expense of the Corporation cause to be published
once in a newspaper of general circulation in The City of New York or mail to
each such Holder notice that such money or property remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing, any unclaimed money or property then
remaining shall be returned to the Corporation. After return to the Corporation,
Holders entitled to the money or property must look to the Corporation for
payment as general creditors unless an applicable abandoned property law
designates another Person.
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4. Fundamental Change.
(a) Purchase at the Option of the Holder Upon a Fundamental Change. Each
Holder shall have the right, at such Holder's option, to require the Corporation
to purchase any or all of such Holder's 4.50% Convertible Preferred Stock for
cash or a check on the date that is no earlier than 60 days nor later than 90
days after the date of the Corporation Notice of the occurrence of such
Fundamental Change (subject to extension to comply with applicable law, as
provided in Section 4(h) (the "Fundamental Change Purchase Date"). The 4.50%
Convertible Preferred Stock shall be repurchased in integral multiples of $50.00
(representing the Liquidation Preference). The Corporation shall purchase such
4.50% Convertible Preferred Stock at a price (the "Fundamental Change Purchase
Price") equal to 100% of the Liquidation Price of the number of shares of 4.50%
Convertible Preferred Stock to be purchased plus accumulated and unpaid
dividends, including Additional Dividends, if any, to the Fundamental Change
Purchase Date.
(b) Notice of Fundamental Change. The Corporation, or at its request
(which must be received by the Paying Agent at least three Business Days (or
such lesser period as agreed to by the Paying Agent) prior to the date the
Paying Agent is requested to give such notice as described below), the Paying
Agent, in the name of and at the expense of the Corporation, shall mail to all
Holders a Corporation Notice of the occurrence of a Fundamental Change and of
the purchase right arising as a result thereof, including the information
required by Section 4(e) hereof, on or before the 30th day after the occurrence
of such Fundamental Change.
(c) Exercise of Option. For 4.50% Convertible Preferred Stock to be so
purchased at the option of the Holder, the Paying Agent must receive at its
office in Jackson, Michigan, or any other offices of the Paying Agent maintained
for such purposes, such shares of 4.50% Convertible Preferred Stock duly
endorsed for transfer, together with a written notice of purchase in the form
attached hereto as Exhibit A (a "Fundamental Change Purchase Notice") duly
completed, on or before the 30th day prior to the Fundamental Change Purchase
Date, subject to extension to comply with applicable law. The Fundamental Change
Purchase Notice shall state:
(i) if certificated, the certificate numbers of the shares of 4.50%
Convertible Preferred Stock which the Holder shall deliver to be
purchased, or, if not certificated, the Fundamental Change Purchase
Notice must comply with appropriate Depository procedures;
(ii) the number of shares of 4.50% Convertible Preferred Stock which the
Holder shall deliver to be purchased, which portion must be $50.00
or an integral multiple thereof; and
(iii) that such 4.50% Convertible Preferred Stock shall be purchased as
of the Fundamental Change Purchase Date pursuant to the terms and
conditions specified in the 4.50% Convertible Preferred Stock and
in this Certificate of Designation.
(d) Procedures. The Corporation shall purchase from a Holder, pursuant to
this Section 4, shares of 4.50% Convertible Preferred Stock or multiples of
$50.00 if so requested by such Holder.
Any purchase by the Corporation contemplated pursuant to the provisions
of this Section 4 shall be consummated by the delivery of the Fundamental Change
Purchase Price to be received by the Holder promptly following the later of the
Fundamental Change Purchase Date or the time of book-entry transfer or delivery
of the 4.50% Convertible Preferred Stock.
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Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Fundamental Change Purchase Notice contemplated by Section
4(c) hereof shall have the right at any time prior to the close of business on
the Business Day prior to the Fundamental Change Purchase Date to withdraw such
Fundamental Change Purchase Notice (in whole or in part) by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 4(f)
hereof.
The Paying Agent shall promptly notify the Corporation of the receipt by
it of any Fundamental Change Purchase Notice or written notice of withdrawal
thereof.
On or before 10:00 a.m. (New York City time) on the Fundamental Change
Purchase Date, the Corporation shall deposit with the Paying Agent (or if the
Corporation or an Affiliate of the Corporation is acting as the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the aggregate
Fundamental Change Purchase Price of the 4.50% Convertible Preferred Stock to be
purchased pursuant to this Section 4. Payment by the Paying Agent of the
Fundamental Change Purchase Price for such 4.50% Convertible Preferred Stock
shall be made promptly following the later of the Fundamental Change Purchase
Date or the time of book-entry transfer or delivery of such 4.50% Convertible
Preferred Stock. If the Paying Agent holds, in accordance with the terms of this
Certificate of Designation, money sufficient to pay the Fundamental Change
Purchase Price of such 4.50% Convertible Preferred Stock on the Business Day
following the Fundamental Change Purchase Date, then, on and after such date,
such 4.50% Convertible Preferred Stock shall cease to be outstanding and
dividends (including Additional Dividends, if any) on such 4.50% Convertible
Preferred Stock shall cease to accumulate, whether or not book-entry transfer of
such 4.50% Convertible Preferred Stock is made or such 4.50% Convertible
Preferred Stock is delivered to the Paying Agent, and all other rights of the
Holder shall terminate (other than the right to receive the Fundamental Change
Purchase Price upon delivery or transfer of the 4.50% Convertible Preferred
Stock). Nothing herein shall preclude any withholding tax required by law.
The Corporation shall require each Paying Agent to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders all money held
by the Paying Agent for the payment of the Fundamental Change Purchase Price. If
the Corporation or an Affiliate of the Corporation acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund.
All questions as to the validity, eligibility (including time of receipt)
and acceptance of any 4.50% Convertible Preferred Stock pursuant to a
Fundamental Change shall be determined by the Corporation, whose determination
shall be final and binding.
(e) Notice of Fundamental Change. The Corporation shall send notices
(each, a "Corporation Notice") to the Holders (and to beneficial owners as
required by applicable law) at their addresses shown in the Security Register
maintained by the Security Registrar, and delivered to the Paying Agent on or
before the 30th day after the occurrence of the Fundamental Change ("Corporation
Notice Date"). Each Corporation Notice shall include a form of Fundamental
Change Purchase Notice to be completed by a Holder and shall state:
(i) the applicable Fundamental Change Purchase Price, excluding
accumulated and unpaid dividends, Conversion Rate at the time of
such notice (and any adjustments to the Conversion Rate) and, to
the extent known at the time of such notice, the amount of
dividends (including Additional Dividends, if any), if any, that
will be payable with respect to the 4.50% Convertible Preferred
Stock on the applicable Fundamental Change Purchase Date;
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(ii) the events causing the Fundamental Change and the date of the
Fundamental Change;
(iii) the Fundamental Change Purchase Date;
(iv) the last date on which a Holder may exercise its purchase right;
(v) the name and address of the Paying Agent and the Conversion Agent;
(vi) that the 4.50% Convertible Preferred Stock must be surrendered to
the Paying Agent to collect payment of the Fundamental Change
Purchase Price;
(vii) that the 4.50% Convertible Preferred Stock as to which a
Fundamental Change Purchase Notice has been given may be converted
only if the applicable Fundamental Change Purchase Notice has been
withdrawn in accordance with the terms of this Certificate of
Designation;
(viii) that the Fundamental Change Purchase Price for any of the 4.50%
Convertible Preferred Stock as to which a Fundamental Change
Purchase Notice has been given and not withdrawn shall be paid by
the Paying Agent promptly following the later of the Fundamental
Change Purchase Date or the time of book-entry transfer or
delivery of such 4.50% Convertible Preferred Stock;
(ix) the procedures the Holder must follow under this Section 4;
(x) briefly, the conversion rights of the 4.50% Convertible Preferred
Stock;
(xi) that, unless the Corporation defaults in making payment of such
Fundamental Change Purchase Price on the 4.50% Convertible
Preferred Stock covered by any Fundamental Change Purchase Notice,
dividends (including Additional Dividends, if any) will cease to
accumulate on and after the Fundamental Change Purchase Date;
(xii) the CUSIP or ISIN number of the 4.50% Convertible Preferred Stock;
and
(xiii) the procedures for withdrawing a Fundamental Change Purchase
Notice.
In connection with providing such Corporation Notice, the Corporation
will issue a press release and publish a notice containing the information in
such Corporation Notice in a newspaper of general circulation in The City of New
York or publish such information on the Corporation's then existing Web site or
through such other public medium as the Corporation may use at the time.
At the Corporation's request, made at least five Business Days prior to
the date upon which such notice is to be mailed, and at the Corporation's
expense, the Paying Agent shall give the Corporation Notice in the Corporation's
name; provided, however, that, in all cases, the text of the Corporation Notice
shall be prepared by the Corporation.
(f) Effect of Fundamental Change Purchase Notice. Upon receipt by the
Corporation of the Fundamental Change Purchase Notice specified in this Section
4, the Holder of the 4.50% Convertible Preferred Stock in respect of which such
Fundamental Change Purchase Notice was given shall (unless such Fundamental
Change Purchase Notice is withdrawn as specified in this Section 4(f))
thereafter be entitled to receive solely the Fundamental Change Purchase Price
with respect to such 4.50% Convertible Preferred Stock. Such Fundamental Change
Purchase Price shall be paid by the Paying Agent to such Holder promptly
following the later of (x) the Fundamental Change Purchase Date with respect to
such 4.50% Convertible Preferred Stock (provided the
14
conditions in this Section 4 have been satisfied) and (y) the time of delivery
or book-entry transfer of such 4.50% Convertible Preferred Stock to the Paying
Agent by the Holder thereof in the manner required by this Section 4. 4.50%
Convertible Preferred Stock in respect of which a Fundamental Change Purchase
Notice has been given by the Holder thereof may not be converted for shares of
Common Stock on or after the date of the delivery of such Fundamental Change
Purchase Notice unless such Fundamental Change Purchase Notice has first been
validly withdrawn as specified in this Section 4(f). Payment of the Fundamental
Change Purchase Price for shares of 4.50% Convertible Preferred Stock in
registered, certificated form ("Certificated 4.50% Convertible Preferred Stock")
for which a Fundamental Change Purchase Notice has been delivered and not
withdrawn is conditioned upon delivery of such Certificated 4.50% Convertible
Preferred Stock (together with necessary endorsements) to the Paying Agent at
its office in Jackson, Michigan, or any other office of the Paying Agent
maintained for such purpose, at any time (whether prior to, on or after the
Fundamental Change Purchase Date) after the delivery of such Fundamental Change
Purchase Notice. Payment of the Fundamental Change Purchase Price for such
Certificated 4.50% Convertible Preferred Stock will be made promptly following
the later of the Fundamental Change Purchase Date or the time of delivery of
such Certificated 4.50% Convertible Preferred Stock.
If the Paying Agent holds, in accordance with the terms of this
Certificate of Designation, money sufficient to pay the Fundamental Change
Purchase Price of shares of 4.50% Convertible Preferred Stock on the Business
Day following the Fundamental Change Purchase Date for such 4.50% Convertible
Preferred Stock, then, on and after such date, dividends on such 4.50%
Convertible Preferred Stock will cease to accumulate, whether or not such 4.50%
Convertible Preferred Stock is delivered to the Paying Agent, and all other
rights of the Holder shall terminate (other than the right to receive the
Fundamental Change Purchase Price upon delivery of the 4.50% Convertible
Preferred Stock).
A Fundamental Change Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent at any
time prior to 5:00 p.m. New York City time on the Business Day prior to the
Fundamental Change Purchase Date to which it relates specifying:
(i) if certificated, the certificate number of 4.50% Convertible
Preferred Stock in respect of which such notice of withdrawal is
being submitted, or, if not certificated, the written notice of
withdrawal must comply with appropriate Depository procedures;
(ii) the number of shares of 4.50% Convertible Preferred Stock with
respect to which such notice of withdrawal is being submitted; and
(iii) the number of shares of 4.50% Convertible Preferred Stock, if any,
which remains subject to the original Fundamental Change Purchase
Notice and which have been or shall be delivered for purchase by
the Corporation.
(g) 4.50% Convertible Preferred Stock Purchased in Part. Any shares of
4.50% Convertible Preferred Stock that are to be purchased only in part shall be
surrendered (in physical or book-entry form) at the office of the Paying Agent
(with, if the Corporation so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Corporation duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing) and the
Corporation shall execute and the Transfer Agent shall authenticate and deliver
to the Holder of such 4.50% Convertible Preferred Stock, without service charge,
new shares of 4.50% Convertible Preferred Stock, as requested by such Holder in
an amount equal to, and in exchange for, the portion of the
15
Liquidation Preference of the 4.50% Convertible Preferred Stock so surrendered
which is not purchased.
(h) Covenant to Comply with Securities Laws Upon Purchase of the 4.50%
Convertible Preferred Stock. In connection with any offer to purchase 4.50%
Convertible Preferred Stock under this Section 4, the Corporation shall, to the
extent applicable: (i) comply with Rules 13e-4 and 14e-1 (and any successor
provisions thereto) under the Exchange Act, if applicable; (ii) file the related
Schedule TO (or any successor schedule, form or report) under the Exchange Act,
if applicable; and (iii) otherwise comply with all applicable federal and state
securities laws so as to permit the rights and obligations under this Section 4
hereof to be exercised in the time and in the manner specified in this Section
4.
(i) Repayment to the Corporation. The Paying Agent shall return to the
Corporation any cash or property that remains unclaimed as provided in the 4.50%
Convertible Preferred Stock, together with interest that the Paying Agent has
agreed to pay, if any, held by it for the payment of a Fundamental Change
Purchase Price; provided, however, that to the extent that the aggregate amount
of cash or property deposited by the Corporation pursuant to this Section 4
exceeds the aggregate Fundamental Change Purchase Price of the 4.50% Convertible
Preferred Stock or portions thereof which the Corporation is obligated to
purchase as of the Fundamental Change Purchase Date, then promptly on and after
the Business Day following the Fundamental Change Purchase Date, the Paying
Agent shall return any such excess to the Corporation together with interest
that the Paying Agent has agreed to pay, if any.
(j) Officers' Certificate. At least five Business Days before the
Corporation Notice Date, the Corporation shall deliver an Officers' Certificate
to the Paying Agent (provided, that, at the Corporation's option, the matters to
be addressed in such Officers' Certificate may be divided among two such
certificates) specifying:
(i) the manner of payment selected by the Corporation; and
(ii) whether the Corporation desires the Paying Agent to give the
Corporation Notice required by Section 4(e) hereof.
5. Voting.
(a) The shares of 4.50% Convertible Preferred Stock shall have no voting
rights except as set forth below or as otherwise required by Michigan law from
time to time:
(i) If and whenever at any time or times a Voting Rights Triggering
Event occurs, then the holders of shares of 4.50% Convertible
Preferred Stock, voting as a single class with any other 4.50%
Convertible Preferred Stock or preference securities having similar
voting rights that are exercisable (the "Voting Rights Class"),
will be entitled at the next regular or special meeting of
shareholders of the Corporation to elect two additional directors
of the Corporation, unless the Board of Directors is comprised of
fewer than six directors at such time, in which case the Voting
Rights Class shall be entitled to elect one additional director.
Upon the election of any such additional directors, the number of
directors that comprise the Board of Directors shall be increased
by such number of additional directors.
(ii) Such voting rights may be exercised at a special meeting of the
holders of the shares of the Voting Rights Class, called as
hereinafter provided, or at any annual meeting of
16
shareholders held for the purpose of electing directors, and
thereafter at each such annual meeting until such time as all
dividends in arrears on the shares of 4.50% Convertible Preferred
Stock shall have been paid in full, at which time or times such
voting rights and the term of the directors elected pursuant to
Section 5(a)(i) shall terminate.
(iii) At any time when such voting rights shall have vested in holders of
shares of the Voting Rights Class, an Officer of the Corporation
may call, and, upon written request of the record holders of shares
representing at least twenty-five percent (25%) of the voting power
of the shares then outstanding of the Voting Rights Class,
addressed to the Secretary of the Corporation, shall call a special
meeting of the holders of shares of the Voting Rights Class. Such
meeting shall be held at the earliest practicable date upon the
notice required for annual meetings of shareholders at the place
for holding annual meetings of shareholders of the Corporation, or,
if none, at a place designated by the Board of Directors.
Notwithstanding the provisions of this Section 5(a)(iii), no such
special meeting shall be called during a period within the 60 days
immediately preceding the date fixed for the next annual meeting of
shareholders, in which such case the election of directors pursuant
to Section 5(a)(i) shall be held at such annual meeting of
shareholders.
(iv) At any meeting held for the purpose of electing directors at which
the holders of the Voting Rights Class shall have the right to
elect directors as provided herein, the presence in person or by
proxy of the holders of shares representing more than fifty percent
(50%) in voting power of the then outstanding shares of the Voting
Rights Class shall be required and shall be sufficient to
constitute a quorum of such class for the election of directors by
such class. The affirmative vote of the holders of shares of 4.50%
Convertible Preferred Stock constituting a majority of the shares
of 4.50% Convertible Preferred Stock present at such meeting, in
person or by proxy shall be sufficient to elect any such director.
(v) Any director elected pursuant to the voting rights created under
this Section 5(a) shall hold office until the next annual meeting
of shareholders (unless such term has previously terminated
pursuant to Section 5(a)(ii)) and any vacancy in respect of any
such director shall be filled only by vote of the remaining
director so elected by holders of the Voting Rights Class, or, if
there be no such remaining director, by the holders of shares of
the Voting Rights Class at a special meeting called in accordance
with the procedures set forth in this Section 5, or, if no such
special meeting is called, at the next annual meeting of
shareholders. Upon any termination of such voting rights, the term
of office of all directors elected pursuant to this Section 5 shall
terminate.
(vi) So long as any shares of 4.50% Convertible Preferred Stock remain
outstanding, unless a greater percentage shall then be required by
law, the Corporation shall not, without the affirmative vote or
consent of the holders of all of the outstanding 4.50% Convertible
Preferred Stock voting or consenting, as the case may be,
separately as one class, (i) create, authorize or issue any class
or series of Senior Stock (or any security convertible into Senior
Stock) or (ii) amend the Articles of Incorporation so as to affect
adversely the specified rights, preferences, privileges or voting
rights of holders of shares of 4.50% Convertible Preferred Stock.
(vii) In exercising the voting rights set forth in this Section 5(a),
each share of 4.50% Convertible Preferred Stock shall be entitled
to one vote.
17
(b) The Corporation may authorize, increase the authorized amount of, or
issue any class or series of Parity Stock or Junior Stock, without the consent
of the holders of 4.50% Convertible
Preferred Stock, and in taking such actions the Corporation shall not be
deemed to have affected adversely the rights, preferences, privileges or voting
rights of holders of shares of 4.50% Convertible Preferred Stock.
6. Liquidation Rights.
(a) In the event of any liquidation, winding-up or dissolution of the
Corporation, whether voluntary of involuntary, each holder of shares of 4.50%
Convertible Preferred Stock shall be entitled to receive and to be paid out of
the assets of the Corporation available for distribution to its shareholders the
Liquidation Preference plus Accumulated Dividends and Additional Dividends
thereon in preference to the holders of, and before any payment or distribution
is made on, any Junior Stock, including, without limitation, on any Common
Stock.
(b) Neither the sale, conveyance, exchange or transfer (for cash, shares
of stock, securities or other consideration) of all or substantially all the
assets or business of the Corporation (other than in connection with the
liquidation, winding-up or dissolution of its business) nor the merger or
consolidation of the Corporation into or with any other Person shall be deemed
to be a liquidation, winding-up or dissolution, voluntary or involuntary, for
the purposes of this Section 6.
(c) After the payment to the holders of the shares of 4.50% Convertible
Preferred Stock of full preferential amounts provided for in this Section 6, the
holders of 4.50% Convertible Preferred Stock as such shall have no right or
claim to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available for distribution
to the holders of shares of 4.50% Convertible Preferred Stock upon any
liquidation, winding-up or dissolution of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to Section 6(a), no such distribution shall be
made on account of any shares of Parity Stock upon such liquidation, dissolution
or winding-up unless proportionate distributable amounts shall be paid on
account of the shares of 4.50% Convertible Preferred Stock, ratably, in
proportion to the full distributable amounts for which holders of all 4.50%
Convertible Preferred Stock and of any Parity Stock are entitled upon such
liquidation, winding-up or dissolution.
7. Conversion.
(a) Conversion Rights. A Holder may convert 4.50% Convertible Preferred
Stock into Common Stock during the periods and upon satisfaction of at least one
of the conditions set forth below:
(i) in any calendar quarter (and only during such calendar quarter) if
the Last Reported Sale Price for Common Stock for at least 20
Trading Days during the period of 30 consecutive Trading Days
ending on the last Trading Day of the previous calendar quarter is
greater than or equal to 120% of the Conversion Price per share of
Common Stock on such last Trading Day;
(ii) during the five Business Days immediately following any ten
consecutive Trading Day period in which the Trading Price per
Liquidation Preference of 4.50% Convertible Preferred Stock (as
determined following a request by a Holder of 4.50% Convertible
Preferred Stock in accordance with the procedures described herein)
for each day of that
18
period was less than 95% of the product of the sale price of Common
Stock and the then applicable Conversion Rate (the "Trading
Exception"); provided, however, that a Holder may not convert
its 4.50% Convertible Preferred Stock if the average closing sale
price of Common Stock for such ten consecutive Trading Day period
is between the then current Conversion Price and 120% of the then
applicable Conversion Price; in connection with any conversion upon
satisfaction of such Trading Price condition, the Conversion Agent
shall have no obligation to determine the Trading Price unless the
Corporation has requested such determination; and the Corporation
shall have no obligation to make such request unless the Holder
provides reasonable evidence that the Trading Price would be less
than 95% of the product of the sale price of Common Stock and the
then applicable Conversion Rate; at which time, the Corporation
shall instruct the Conversion Agent to determine the Trading Price
beginning on the next Trading Day and on each successive Trading
Day until the Trading Price is greater than or equal to 95% of
the product of the sale price of Common Stock and the then
applicable Conversion Rate;
(iii) the Corporation becomes a party to a consolidation, merger or
binding share exchange pursuant to which the Common Stock would be
converted into cash or property (other than securities), in which
case a Holder may surrender 4.50% Convertible Preferred Stock for
conversion at any time from and after the date which is 15 days
prior to the anticipated effective date for the transaction until
15 days after the actual effective date of such transaction; or
(iv) the Corporation elects to (i) distribute to all holders of Common
Stock assets, debt securities or rights to purchase securities of
the Corporation, which distribution has a per share value as
determined by the Board of Directors exceeding 15% of the Last
Reported Sale Price of a share of Common Stock on the Trading Day
immediately preceding the declaration date for such distribution,
or (ii) distribute to all holders of Common Stock rights entitling
them to purchase, for a period expiring within 60 days after the
date of such distribution, shares of Common Stock at less than the
Last Reported Sale Price of Common Stock on the Trading Day
immediately preceding the declaration date of the distribution. In
the case of the foregoing clauses (i) and (ii), the Corporation
must notify the Holders at least 20 Business Days immediately prior
to the ex-dividend date for such distribution. Once the Corporation
has given such notice, Holders may surrender their 4.50%
Convertible Preferred Stock for conversion at any time thereafter
until the earlier of the close of business on the Business Day
immediately prior to the ex-dividend date or the Corporation's
announcement that such distribution will not take place; provided,
however, that a Holder may not exercise this right to convert if
the Holder may participate in the distribution without conversion.
As used herein, the term "ex dividend date," when used with respect
to any issuance or distribution, shall mean the first date on which
the Common Stock trades regular way on such exchange or in such
market without the right to receive such issuance or distribution.
The initial Conversion Rate is 5.0541 shares of Common Stock per share
of 4.50% Convertible Preferred Stock, subject to adjustment in certain events as
described herein. The Corporation shall deliver cash or a check in lieu of any
fractional share of Common Stock. A Holder may convert fewer than all of its
4.50% Convertible Preferred Stock so long as the 4.50% Convertible Preferred
Stock converted is an integral multiple of the Liquidation Preference.
19
Holders of 4.50% Convertible Preferred Stock at the close of business
on a Dividend Record Date will receive payment of dividends, payable on the
corresponding Dividend Payment Date notwithstanding the conversion of such 4.50%
Convertible Preferred Stock at any time after the close of business on such
Dividend Record Date. 4.50% Convertible Preferred Stock surrendered for
conversion by a Holder during the period from the close of business on any
Dividend Record Date to the opening of business on the immediately following
Dividend Payment Date must be accompanied by payment of an amount equal to the
dividend that the Holder is to receive on such 4.50% Convertible Preferred
Stock; provided, however, that no such payment need be made if (1) the
Corporation has specified a Mandatory Conversion Date that is after a Dividend
Record Date and on or prior to the immediately following Dividend Payment Date
or (2) any accumulated and unpaid dividends exist at the time of conversion with
respect to such shares of 4.50% Convertible Preferred Stock to the extent of
such accumulated and unpaid dividends.
To convert 4.50% Convertible Preferred Stock a Holder must (i) complete
and manually sign the irrevocable conversion notice in the form attached hereto
as Exhibit B (a "Conversion Notice") (or complete and manually sign a facsimile
of such notice) and deliver such notice to the Conversion Agent at its office in
Jackson, Michigan or any other offices of the Conversion Agent maintained by the
Conversion Agent for such purpose, (ii) surrender the shares of 4.50%
Convertible Preferred Stock to the Conversion Agent, (iii) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent or the
Corporation and (iv) pay any transfer or similar tax, if required.
(b) Conversion Procedures. To convert 4.50% Convertible Preferred
Stock, a Holder must satisfy the requirements in this Section 7 and in the 4.50%
Convertible Preferred Stock. The date on which the Holder satisfies all those
requirements is the conversion date (the "Conversion Date"). As soon as
practicable, but in no event later than the fifth Business Day following the
Conversion Date, the Corporation shall update the global security representing
the shares of Common Stock to record the Holder's interest in the Common Stock,
or deliver to the Holder, through the Conversion Agent, a certificate for the
number of full shares of Common Stock issuable upon the conversion and cash or a
check in lieu of any fractional share determined pursuant to Section 7(c)
hereof. The Person in whose name the certificate is registered shall be treated
as a shareholder of record on and after the Conversion Date; provided, however,
that no surrender of 4.50% Convertible Preferred Stock on any date when the
stock transfer books of the Corporation shall be closed shall be effective to
constitute the Person or Persons entitled to receive the shares of Common Stock
upon such conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
Person or Persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the Conversion Rate in effect on the date that such shares of 4.50%
Convertible Preferred Stock shall have been surrendered for conversion, as if
the stock transfer books of the Corporation had not been closed. Upon conversion
of 4.50% Convertible Preferred Stock, such Person shall no longer be a Holder of
such 4.50% Convertible Preferred Stock.
No payment or adjustment shall be made for dividends on or other
distributions with respect to any Common Stock except as provided in Section
7(f) hereof or as otherwise provided in this Certificate of Designation.
On conversion of 4.50% Convertible Preferred Stock, that portion of
Accumulated Dividends with respect to the converted 4.50% Convertible Preferred
Stock will be deemed canceled, extinguished or forfeited, rather than paid in
full to the Holder thereof through delivery of the
20
Common Stock (together with the cash or check payment, if any, in lieu of
fractional shares) in exchange for the shares of 4.50% Convertible Preferred
Stock being converted pursuant to the provisions hereof, and the Fair Market
Value of such shares of Common Stock (together with any such cash or check
payment in lieu of fractional shares) shall be treated as issued, to the extent
thereof, first in exchange for Accumulated Dividends through the Conversion
Date, and the balance, if any, of such Fair Market Value of such Common Stock
(and any such cash or check payment) shall be treated as issued in exchange for
the Liquidation Preference of the 4.50% Convertible Preferred Stock being
converted pursuant to the provisions hereof.
Upon surrender of 4.50% Convertible Preferred Stock that is converted
in part, the Corporation shall execute, and the Transfer Agent shall
authenticate and deliver to the Holder, new shares of 4.50% Convertible
Preferred Stock in a number equal to the unconverted portion of the shares of
4.50% Convertible Preferred Stock surrendered.
If the last day on which 4.50% Convertible Preferred Stock may be
converted is a legal holiday in a place where a Conversion Agent is located, the
4.50% Convertible Preferred Stock may be surrendered to that Conversion Agent on
the next succeeding day that it is not a legal holiday.
(c) Cash or Check Payments in Lieu of Fractional Shares. The
Corporation shall not issue a fractional share of Common Stock upon conversion
of 4.50% Convertible Preferred Stock. Instead the Corporation shall deliver cash
(or Corporation's check) for the current market value of the fractional share.
The current market value of a fractional share shall be determined to the
nearest 1/10,000th of a share by multiplying the Last Reported Sale Price of a
full share of Common Stock on the Trading Day immediately preceding the
Conversion Date by the fractional amount and rounding the product to the nearest
whole cent.
(d) Taxes on Conversion. If a Holder converts 4.50% Convertible
Preferred Stock, the Corporation shall pay any documentary, stamp or similar
issue or transfer tax due on the issue of shares of Common Stock upon the
conversion. However, the Holder shall pay any such tax which is due because the
Holder requests the shares to be issued in a name other than the Holder's name.
The Conversion Agent may refuse to deliver the certificates representing the
Common Stock being issued in a name other than the Holder's name until the
Conversion Agent receives a sum sufficient to pay any tax which shall be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any withholding tax required by law.
(e) Covenants of the Corporation. The Corporation shall, prior to
issuance of any 4.50% Convertible Preferred Stock hereunder, and from time to
time as may be necessary, reserve out of its authorized but unissued Common
Stock a sufficient number of shares of Common Stock to permit the conversion of
the 4.50% Convertible Preferred Stock.
All shares of Common Stock delivered upon conversion of the 4.50%
Convertible Preferred Stock shall be newly issued shares or treasury shares,
shall be duly and validly issued and fully paid and nonassessable and shall be
free from preemptive rights and free of any lien or adverse claim.
The Corporation shall endeavor promptly to comply with all federal and
state securities laws regulating the order and delivery of shares of Common
Stock upon the conversion of 4.50% Convertible Preferred Stock, if any, and
shall cause to have listed or quoted all such shares of Common Stock on each
United States national securities exchange or over-the-counter or other domestic
market on which the Common Stock is then listed or quoted.
(f) Adjustments to Conversion Rate. The Conversion Rate shall be
adjusted from time to time, without duplication, as follows:
21
(i) In case the Corporation shall: (a) pay a dividend, or make a
distribution, exclusively in shares of its capital stock, on the
Common Stock; (b) subdivide its outstanding Common Stock into a
greater number of shares; (c) combine its outstanding Common Stock
into a smaller number of shares; or (d) reclassify its Common
Stock, the Conversion Rate in effect immediately prior to the
record date or effective date, as the case may be, for the
adjustment pursuant to this Section 7(f) as described below, shall
be adjusted so that the Holder of any 4.50% Convertible Preferred
Stock thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock of the Corporation
which such Holder would have owned or have been entitled to receive
after the happening of any of the events described above had such
4.50% Convertible Preferred Stock been converted immediately prior
to such record date or effective date, as the case may be. An
adjustment made pursuant to this Section 7(f) shall become
effective immediately after the applicable record date in the case
of a dividend or distribution and shall become effective
immediately after the applicable effective date in the case of
subdivision, combination or reclassification of the Corporation's
Common Stock. If any dividend or distribution of the type described
in clause (a) above is not so paid or made, the Conversion Rate
shall again be adjusted to the Conversion Rate which would then be
in effect if such dividend or distribution had not been declared.
(ii) In case the Corporation shall issue rights or warrants to all
holders of the Common Stock entitling them (for a period expiring
within 60 days after the date of issuance of such rights or
warrants) to subscribe for or purchase Common Stock at a price per
share less than the Market Price per share of Common Stock on the
record date fixed for determination of shareholders entitled to
receive such rights or warrants, the Conversion Rate in effect
immediately after such record date shall be adjusted so that the
same shall equal the Conversion Rate determined by multiplying the
Conversion Rate in effect immediately after such record date by a
fraction of which (a) the numerator shall be the number of shares
of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock offered for subscription or
purchase, and (b) the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of
shares which the aggregate offering price of the total number of
shares so offered would purchase at the Market Price per share of
Common Stock on the earlier of such record date or the Trading Day
immediately preceding the ex-dividend date for such issuance of
rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become
effective immediately after the opening of business on the day
following the record date for the determination of shareholders
entitled to receive such rights or warrants. To the extent that
shares of Common Stock are not delivered after the expiration of
such rights or warrants, the Conversion Rate shall be readjusted to
the Conversion Rate which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been
made on the basis of delivery of only the number of shares of
Common Stock actually delivered. If such rights or warrants are not
so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such record date
for the determination of shareholders entitled to receive such
rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such Market Price, and in
determining the aggregate offering price of such shares of Common
Stock, there shall be taken into account any consideration received
by the Corporation for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors.
22
(iii) In case the Corporation shall, by dividend or otherwise, distribute
to all holders of Common Stock any assets, debt securities or
rights or warrants to purchase any of its securities (excluding (a)
any dividend, distribution or issuance covered by those referred to
in Section 7(f)(i) or Section 7(f)(ii) hereof and (b) any dividend
or distribution paid exclusively in cash) (any of the foregoing
hereinafter in this Section 7(f)(iii) called the "Distributed
Assets or Securities") in an aggregate amount per share of Common
Stock that, combined together with the aggregate amount of any
other such distributions to all holders of its Common Stock made
within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to
this Section 7(f)(iii) has been made, exceeds 15% of the Market
Price on the Trading Day immediately preceding the declaration of
such distribution, then the Conversion Rate shall be adjusted so
that the same shall equal the Conversion Rate determined by
multiplying the Conversion Rate in effect immediately prior to the
close of business on the record date mentioned below by a fraction
of which (A) the numerator shall be the Market Price per share of
the Common Stock on the earlier of such record date or the Trading
Day immediately preceding the ex-dividend date for such dividend or
distribution, and (B) the denominator shall be (1) the Market Price
per share of the Common Stock on the earlier of such record date or
the Trading Day immediately preceding the ex-dividend date for such
dividend or distribution less (2) the Fair Market Value on the
earlier of such record date or the Trading Day immediately
preceding the ex-dividend date for such dividend or distribution
(as determined by the Board of Directors, whose determination shall
be conclusive, and described in a certificate filed with the Paying
Agent) of the Distributed Assets or Securities so distributed
applicable to one share of Common Stock. Such adjustment shall
become effective immediately after the record date for the
determination of shareholders entitled to receive such
distribution; provided, however, that, if (a) the Fair Market Value
of the portion of the Distributed Assets or Securities so
distributed applicable to one share of Common Stock is equal to or
greater than the Market Price of the Common Stock on the record
date for the determination of shareholders entitled to receive such
distribution or (b) the Market Price of the Common Stock on the
record date for the determination of shareholders entitled to
receive such distribution is greater than the Fair Market Value per
share of such Distributed Assets or Securities by less than $1.00,
then, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Holder shall have the right to receive upon
conversion, in addition to the shares of Common Stock, the kind and
amount of assets, debt securities, or rights or warrants comprising
the Distributed Assets or Securities the Holder would have received
had such Holder converted such 4.50% Convertible Preferred Stock
immediately prior to the record date for the determination of
shareholders entitled to receive such distribution. In the event
that such distribution is not so paid or made, the Conversion Rate
shall again be adjusted to the Conversion Rate which would then be
in effect if such distribution had not been declared.
(iv) In case the Corporation shall make (a) any distributions, by
dividend or otherwise, during any quarterly fiscal periods
consisting exclusively of cash to all holders of outstanding shares
of Common Stock in an aggregate amount that, together with (b)
other all-cash or all-check distributions made to all holders of
outstanding shares of Common Stock during such quarterly fiscal
period, and (c) any cash and the Fair Market Value, as of the
expiration of any tender or exchange offer (other than
consideration payable in respect of any odd-lot tender offer) of
consideration payable in respect of any tender or exchange offer by
the Corporation or any of the Corporation's Subsidiaries for all or
any portion of shares of Common Stock concluded during such
quarterly fiscal period, exceed the product of $0 multiplied by the
number of shares of Common Stock
23
outstanding on the record date for such distribution, then, and in
each such case, the Conversion Rate shall be adjusted so that the
same shall equal the Conversion Rate determined by multiplying the
Conversion Rate in effect immediately prior to the close of
business on the record date fixed for the determination of holders
of Common Stock entitled to receive such distribution by a
fraction of which (A) the numerator shall be the Market Price per
share of the Common Stock on the earlier of such record date or
the Trading Day immediately preceding the ex-dividend date for
such dividend or distribution and (B) the denominator shall be (1)
the Market Price per share of Common Stock on the earlier of such
record date or the Trading Day immediately preceding the
ex-dividend date for such dividend or distribution plus (2) $0
less (3) an amount equal to the quotient of (x) the combined
amount distributed or payable in the transactions described in
clauses (a), (b) and (c) above during such quarterly fiscal period
and (y) the number of shares of Common Stock outstanding on such
record date, such adjustment to become effective immediately after
the record date for the determination of shareholders entitled to
receive such distribution.
(v) With respect to Section 7(f)(iii) hereof, in the event that the
Corporation makes any distribution to all holders of Common Stock
consisting of Equity Interests in a Subsidiary or other business
unit of the Corporation, the Conversion Rate shall be adjusted so
that the same shall equal the Conversion Rate determined by
multiplying the Conversion Rate in effect immediately prior to the
close of business on the record date fixed for the determination
of holders of Common Stock entitled to receive such distribution
by a fraction of which (i) the numerator shall be (x) the Spin-off
Market Price per share of the Common Stock on such record date
plus (y) the Spin-off Market Price per Equity Interest of the
Subsidiary or other business unit of the Corporation on such
record date and (ii) the denominator shall be the Spin-off Market
Price per share of the Common Stock on such record date, such
adjustment to become effective 10 Trading Days after the effective
date of such distribution of Equity Interests in a Subsidiary or
other business unit of the Corporation.
(vi) Upon conversion of the 4.50% Convertible Preferred Stock, the
Holders shall receive, in addition to the Common Stock issuable
upon such conversion, the rights issued under any future
shareholder rights plan the Corporation implements
(notwithstanding the occurrence of an event causing such rights to
separate from the Common Stock at or prior to the time of
conversion) unless, prior to conversion, the rights have expired,
terminated or been redeemed or exchanged in accordance with such
rights plan. If, and only if, the Holders of 4.50% Convertible
Preferred Stock receive rights under such shareholder rights plans
as described in the preceding sentence upon conversion of their
4.50% Convertible Preferred Stock, then no other adjustment
pursuant to this Section 7(f) shall be made in connection with
such shareholder rights plans.
(vii) For purposes of this Section 7(f), the number of shares of Common
Stock at any time outstanding shall not include shares held in the
treasury of the Corporation but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Corporation shall not pay any dividend
or make any distribution on shares of Common Stock held in the
treasury of the Corporation.
(viii) Notwithstanding the foregoing, in no event shall the Conversion
Rate exceed the maximum conversion rate specified under this
Section 7(f)(viii) (the "Maximum Conversion Rate") as a result of
an adjustment pursuant to Section 7(f)(iii) or Section 7(f)(iv)
hereof. The Maximum Conversion Rate shall initially be 6.5703 and
shall be
24
appropriately adjusted from time to time for any stock dividends
on or subdivisions or combinations of the Common Stock. The
Maximum Conversion Rate shall not apply to any adjustments made
pursuant to any of the events in Section 7(f)(i) or Section
7(f)(ii) hereof.
(g) Calculation Methodology. No adjustment in the Conversion Price need
be made unless the adjustment would require an increase or decrease of at least
1% in the Conversion Price then in effect, provided that any adjustment that
would otherwise be required to be made shall be carried forward and taken into
account in any subsequent adjustment. Except as stated in this Section 7, the
Conversion Rate will not be adjusted for the issuance of Common Stock or any
securities convertible into or exchangeable for Common Stock or carrying the
right to purchase any of the foregoing. Any adjustments that are made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under Section 4 and Section 7(f) hereof and this Section 7(g) shall
be made to the nearest cent or to the nearest 1/10,000th of a share, as the case
may be.
(h) When No Adjustment Required. No adjustment to the Conversion
Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any
present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation
and the investment of additional optional amounts in shares of
Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or
rights to purchase those shares pursuant to any present or future
employee, director or consultant benefit plan or program of or
assumed by the Corporation or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any
option, warrant, right, or exercisable, exchangeable or
convertible security not described in clause (ii) above and
outstanding as of the date of this Certificate of Designation;
(iv) for a change in the par value or no par value of the Common
Stock;
(v) for accumulated and unpaid dividends (including Additional
Dividends, if any); or
(vi) if Holders are to participate in a merger or consolidation on a
basis and with notice that the Board of Directors determines to
be fair and appropriate in light of the basis and notice on which
holders of Common Stock participate in the transaction; provided
that the basis on which the Holders are to participate in the
transaction shall not be deemed to be fair if it would require
the conversion of securities at any time prior to the expiration
of the conversion period specified for such securities.
To the extent the 4.50% Convertible Preferred Stock becomes convertible
into cash, assets or property (other than capital stock of the Corporation or
securities to which Section 7(l) hereof applies), no adjustment shall be made
thereafter as to the cash, assets or property. Interest shall not accumulate on
such cash.
(i) Notice of Adjustment. Whenever the Conversion Rate is adjusted, the
Corporation shall promptly mail to Holders a notice of the adjustment. The
Corporation shall file with the Conversion Agent such notice. The certificate
shall, absent manifest error, be conclusive evidence that the adjustment is
correct. No Conversion Agent shall be under any duty or responsibility with
respect to any such certificate except to exhibit the same to any Holder
desiring inspection thereof.
25
(j) Voluntary Increase. The Corporation may make such increases in the
Conversion Rate, in addition to those required by Section 7(f) hereof, as the
Board of Directors considers to be advisable to avoid or diminish any income tax
to holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes. To the extent permitted by applicable
law, the Corporation may from time to time increase the Conversion Rate by any
amount, temporarily or otherwise, for any period of at least 20 days if the
increase is irrevocable during the period and the Board of Directors shall have
made a determination that such increase would be in the best interests of the
Corporation, which determination shall be conclusive. Whenever the Conversion
Rate is so increased, the Corporation shall mail to Holders and file with the
Conversion Agent a notice of such increase. The Conversion Agent shall not be
under any duty or responsibility with respect to any such notice except to
exhibit the same to any holder desiring inspection thereof. The Corporation
shall mail the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and the
period it shall be in effect.
(k) Notice to Holders Prior to Certain Actions. In case:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock that would require an
adjustment in the Conversion Rate pursuant to Section 7(f)
hereof;
(ii) the Corporation shall authorize the granting to all or
substantially all the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or
any other rights or warrants;
(iii) of any reclassification or reorganization of the Common Stock of
the Corporation (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or from par
value to no par value, or from no par value to par value), or of
any consolidation or merger to which the Corporation is a party
and for which approval of any shareholders of the Corporation is
required, or of the sale or transfer of all or substantially all
of the assets of the Corporation; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation,
the Corporation shall cause to be filed with the Conversion Agent
and to be mailed to each Holder at its address appearing on the
Security Register, as promptly as possible but in any event at
least 15 days prior to the applicable date hereinafter specified,
a notice stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution or rights or
warrants, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to
such dividend, distribution, or rights or warrants are to be
determined or (y) the date on which such reclassification,
reorganization, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become
effective or occur, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property deliverable
upon such reclassification, reorganization, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up.
Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reclassification, reorganization, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up.
26
(l) Effect of Reclassification, Consolidation, Merger, Binding Share
Exchange or Sale. If any of the following events occur, namely: (i) any
reclassification or change of outstanding shares of Common Stock (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination); (ii) any
consolidation, merger, combination or binding share exchange of the Corporation
with another Person as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock; or (iii) any sale or
conveyance of the properties and assets of the Corporation as, or substantially
as, an entirety to any other Person as a result of which holders of Common Stock
shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, then the
Corporation or the successor or purchasing Person, as the case may be, shall
cause an amendment to this Certificate of Designation to be executed and filed
in accordance with Michigan law, providing that each share of 4.50% Convertible
Preferred Stock shall be convertible into the kind and amount of shares of stock
and other securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, binding share
exchange, sale or conveyance by a holder of a number of shares of Common Stock
issuable upon conversion of such 4.50% Convertible Preferred Stock immediately
prior to such reclassification, change, consolidation, merger, combination,
binding share exchange, sale or conveyance. Such amended Certificate of
Designation shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 7(l).
The Corporation shall cause notice of the execution of such amended
Certificate of Designation to be mailed to each Holder, at its address appearing
on the Security Register, within 20 days after filing thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section 7(l) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
binding share exchanges, sales and conveyances.
If this Section 7(l) applies to any event or occurrence, Section 7(f)
hereof shall not apply.
(m) Responsibility of Conversion Agent. The Conversion Agent shall not
at any time be under any duty or responsibility to any Holder to either
calculate the Conversion Rate or determine whether any facts exist which may
require any adjustment of the Conversion Rate, or with respect to the nature or
extent or calculation of any such adjustment when made, or with respect to the
method employed, or herein or in any amended Certificate of Designation provided
to be employed, in making the same and shall be protected in relying upon an
Officers' Certificate with respect to the same. The Conversion Agent shall not
be accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any 4.50% Convertible
Preferred Stock and the Conversion Agent makes no representations with respect
thereto. The Conversion Agent shall not be responsible for any failure of the
Corporation to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
4.50% Convertible Preferred Stock for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of the Corporation
contained in this Section 7(m). Without limiting the generality of the
foregoing, the Conversion Agent shall not be under any responsibility to
determine the correctness of any provisions contained in any amended Certificate
of Designation entered into pursuant to this Section 7 relating either to the
kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their 4.50% Convertible Preferred
Stock after any event referred to in this Section 7 or to any adjustment to be
made with respect thereto, but may accept as conclusive evidence of the
correctness of any such
27
provisions, and shall be protected in relying upon, the Officers' Certificate
(which the Corporation shall be obligated to file with the Conversion Agent
prior to the execution of any such amended Certificate of Designation) with
respect thereto.
(n) Simultaneous Adjustments. In the event that Section 7(f) hereof
requires adjustments to the Conversion Rate under more than one of Section
7(f)(i), Section 7(f)(ii), Section 7(f)(iii) or Section 7(f)(iv) hereof, and the
Dividend Record Dates for the distributions giving rise to such adjustments
shall occur on the same date, then such adjustments shall be made by applying,
first, the provisions of Section 7(f)(iii) hereof, second, the provisions of
Section 7(f)(i) hereof and third, the provisions of Section 7(f)(ii) hereof;
provided, however, that nothing in this Section 7(n) shall be done to evade the
principle set forth in Section 7(f)(viii) hereof that the Maximum Conversion
Rate shall not apply to any adjustments made with respect to any of the events
in Section 7(f)(i) or Section 7(f)(ii) hereof.
(o) Successive Adjustments. After an adjustment to the Conversion Rate
under Section 7(f) hereof, any subsequent event requiring an adjustment under
Section 7(f) shall cause an adjustment to the Conversion Rate as so adjusted.
(p) General Considerations. Whenever successive adjustments to the
Conversion Rate are called for pursuant to this Section 7, such adjustments
shall be made to the Market Price as may be necessary or appropriate to
effectuate the intent of this Section 7 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(q) Corporation Determination Final. Any determination which the
Board of Directors must make pursuant to this Section 7 shall be conclusive and
binding on the Holders.
8. Mandatory Conversion.
(a) At any time on or after December 5, 2008, the Corporation shall
have the right, at its option, to cause the 4.50% Convertible Preferred Stock,
in whole but not in part, to be automatically converted into that number of
whole shares of Common Stock for each share of 4.50% Convertible Preferred Stock
equal to the quotient of (i) the Liquidation Preference divided by (ii) the
Conversion Price then in effect, with any resulting fractional shares of Common
Stock to be settled in accordance with Section 7(c). The Corporation may
exercise its right to cause a mandatory conversion pursuant to this Section 8(a)
only if the Last Reported Sale Price of the Common Stock equals or exceeds 130%
of the Conversion Price then in effect for at least 20 Trading Days in any
consecutive 30-day trading period on the NYSE (or such other national securities
exchange or automated quotation system on which the Common Stock is then listed
or authorized for quotation), including the last Trading Day of such 30-day
period, ending on the Trading Day prior to the Corporation's issuance of a press
release announcing the mandatory conversion as described in Section 8(b).
(b) To exercise the mandatory conversion right described in Section
8(a) , the Corporation must issue a press release for publication on the Dow
Jones News Service prior to the opening of business on the first trading day
following any date on which the conditions described in Section 8(a) are met,
announcing such a mandatory conversion. The Corporation shall also give notice
by mail or by publication (with subsequent prompt notice by mail) to the holders
of 4.50% Convertible Preferred Stock (not more than four Business Days after the
date of the press release) of the mandatory conversion announcing the
Corporation's intention to convert the 4.50% Convertible Preferred Stock. The
conversion date will be a date selected by the Corporation (the "Mandatory
Conversion Date") and will be no more than five days after the date on which the
Corporation issues
28
the press release described in this Section 8(b).
(c) In addition to any information required by applicable law or
regulation, the press release and notice of a mandatory conversion described in
Section 8(b) shall state, as appropriate: (i) the Mandatory Conversion Date;
(ii) the number of shares of Common Stock to be issued upon conversion of each
share of 4.50% Convertible Preferred Stock; (iii) the number of shares of 4.50%
Convertible Preferred Stock to be converted; and (iv) that dividends on the
4.50% Convertible Preferred Stock to be converted will cease to accumulate on
the Mandatory Conversion Date.
(d) On and after the Mandatory Conversion Date, dividends will cease to
accumulate on the 4.50% Convertible Preferred Stock called for a mandatory
conversion pursuant to Section 8(a) and all rights of holders of such 4.50%
Convertible Preferred Stock will terminate except for the right to receive the
whole shares of Common Stock issuable upon conversion thereof and cash, in lieu
of any fractional shares of Common Stock in accordance with Section 7(c). The
dividend payment with respect to the 4.50% Convertible Preferred Stock called
for a mandatory conversion pursuant to Section 8(a) on a date during the period
between the close of business on any Dividend Record Date to the close of
business on the corresponding Dividend Payment Date will be payable on such
Dividend Payment Date to the record holder of such share on such Dividend Record
Date if such share has been converted after such Dividend Record Date and prior
to such Dividend Payment Date. Except as provided in the immediately preceding
sentence with respect to a mandatory conversion pursuant to Section 8(a), no
payment or adjustment will be made upon conversion of 4.50% Convertible
Preferred Stock for Accumulated Dividends or for dividends with respect to the
Common Stock issued upon such conversion.
(e) The Corporation may not authorize, issue a press release or give
notice of any mandatory conversion pursuant to Section 8(a) unless, prior to
giving the mandatory conversion notice, all Accumulated Dividends on the 4.50%
Convertible Preferred Stock for periods ended prior to the date of such
mandatory conversion notice shall have been paid in cash.
(f) In addition to the mandatory conversion right described in Section
8(a), if there are less than 250,000 shares of 4.50% Convertible Preferred Stock
outstanding, the Corporation shall have the right, at any time on or after
December 5, 2008, at its option, to cause the 4.50% Convertible Preferred Stock
to be automatically converted into that number of whole shares of Common Stock
equal to the quotient of (i) the Liquidation Preference divided by (ii) the
lesser of (A) the Conversion Price then in effect and (B) the Market Value for
the period ending on the second Trading Day immediately prior to the Mandatory
Conversion Date, with any resulting fractional shares of Common Stock to be
settled in cash in accordance with Section 7(c). The provisions of clauses (b),
(c), (d) and (e) of this Section 8 shall apply to any mandatory conversion
pursuant to this clause (f); provided, that (i) the Mandatory Conversion Date
described in Section 8(b) shall not be less than 15 days nor more than 30 days
after the date on which the Corporation issues a press release pursuant to
Section 8(b) announcing such mandatory conversion and (ii) the press release and
notice of mandatory conversion described in Section 8(c) will not state the
number of shares of Common Stock to be issued upon conversion of each share of
4.50% Convertible Preferred Stock.
9. Consolidation, Merger and Sale of Assets.
(a) The Corporation, without the consent of the Holders of any of the
outstanding 4.50% Convertible Preferred Stock, may consolidate with or merge
into any other Person or convey, transfer or lease all or substantially all its
assets to any Person or may permit any Person to consolidate with or merge into,
or transfer or lease all or substantially all its properties to, the
Corporation; provided,
29
however, that: (a) the successor, transferee or lessee is organized under the
laws of the United States or any political subdivision thereof; (b) the shares
of 4.50% Convertible Preferred Stock will become shares of such successor,
transferee or lessee, having in respect of such successor, transferee or lessee
the same powers, designations, preferences and relative, participating, optional
or other rights on which, and the qualification, limitations or restrictions
thereon, the 4.50% Convertible Preferred Stock had immediately prior to such
transaction; and (c) the Corporation delivers to the Transfer Agent an Officers'
Certificate and an Opinion of Counsel stating that such transaction complies
with this Certificate of Designation (including without limitation the
requirements of Section 7(l).
(b) Upon any consolidation by the Corporation with, or merger by the
Corporation into, any other Person or any conveyance, transfer or lease of all
or substantially all the assets of the Corporation as described in Section 9(a),
the successor resulting from such consolidation or into which the Corporation is
merged or the transferee or lessee to which such conveyance, transfer or lease
is made will succeed to, and be substituted for, and may exercise every right
and power of, the Corporation under the shares of 4.50% Convertible Preferred
Stock, and, thereafter, except in the case of a lease, the predecessor (if still
in existence) will be released from its obligations and covenants with respect
to the 4.50% Convertible Preferred Stock.
10. SEC Reports.
Whether or not the Corporation is required to file reports with the
Commission, if any shares of 4.50% Convertible Preferred Stock are outstanding,
the Corporation shall file with the Commission all such reports and other
information as it would be required to file with the Commission by Section 13(a)
or 15(d) under the Exchange Act. The Corporation shall supply each holder of
4.50% Convertible Preferred Stock, upon request, without cost to such holder,
copies of such reports or other information.
11. Certificates.
(a) Form and Dating. The 4.50% Convertible Preferred Stock and the
Transfer Agent's certificate of authentication shall be substantially in the
form of Exhibit C, which is hereby incorporated in and expressly made a part of
this Certificate of Designation. The 4.50% Convertible Preferred Stock
certificate may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Corporation is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Corporation). Each 4.50% Convertible Preferred Stock certificate shall be
dated the date of its authentication. The terms of the
30
4.50% Convertible Preferred Stock certificate set forth in Exhibit C are part of
the terms of this Certificate of Designation.
(i) Global 4.50% Convertible Preferred Stock. The 4.50% Convertible
Preferred Stock shall be issued initially in the form of one or
more fully registered global certificates with the global
securities legend and restricted securities legend set forth in
Exhibit C hereto (the "Global 4.50% Convertible Preferred
Stock"), which shall be deposited on behalf of the purchasers
represented thereby with DTC (or with such custodian as DTC may
direct), and registered in the name of DTC or a nominee of DTC,
duly executed by the Corporation and authenticated by the
Transfer Agent as hereinafter provided. The number of shares of
4.50% Convertible Preferred Stock represented by Global 4.50%
Convertible Preferred Stock may from time to time be increased or
decreased by adjustments made on the records of the Transfer
Agent and DTC or its nominee as hereinafter provided. With
respect to shares of 4.50% Convertible Preferred Stock that are
not "restricted securities" as defined in Rule 144 under the
Securities Act on a Conversion Date, all shares of Common Stock
distributed on such Conversion Date will be freely transferable
without restriction under the Securities Act (other than by
affiliates), and such shares will be eligible for receipt in
global form through the facilities of DTC.
(ii) Book-Entry Provisions. In the event Global 4.50% Convertible
Preferred Stock is deposited with or on behalf of DTC, the
Corporation shall execute and the Transfer Agent shall
authenticate and deliver initially one or more Global 4.50%
Convertible Preferred Stock certificates that (a) shall be
registered in the name of DTC as depository for such Global 4.50%
Convertible Preferred Stock or the nominee of DTC and (b) shall
be delivered by the Transfer Agent to DTC or pursuant to DTC's
instructions or held by the Transfer Agent as custodian for DTC.
Members of, or participants in, DTC ("Agent Members") shall have
no rights under this Certificate of Designation with respect to
any Global 4.50% Convertible Preferred Stock held on their behalf
by DTC or by the Transfer Agent as the custodian of DTC or under
such Global 4.50% Convertible Preferred Stock, and DTC may be
treated by the Corporation, the Transfer Agent and any agent of
the Corporation or the Transfer Agent as the absolute owner of
such Global 4.50% Convertible Preferred Stock for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Corporation, the Transfer Agent or any agent of the
Corporation or the Transfer Agent from giving effect to any
written certification, proxy or other authorization furnished by
DTC or impair, as between DTC and its Agent Members, the
operation of customary practices of DTC governing the exercise of
the rights of a holder of a beneficial interest in any Global
4.50% Convertible Preferred Stock.
(iii) Certificated 4.50% Convertible Preferred Stock. Except as
provided in Section 11(c), owners of beneficial interests in
Global 4.50% Convertible Preferred Stock will not be entitled to
receive Certificated 4.50% Convertible Preferred Stock.
(b) Execution and Authentication. Two Officers shall sign the 4.50%
Convertible Preferred Stock certificate for the Corporation by manual or
facsimile signature.
31
If an Officer whose signature is on a 4.50% Convertible Preferred Stock
certificate no longer holds that office at the time the Transfer Agent
authenticates the 4.50% Convertible Preferred Stock certificate, the 4.50%
Convertible Preferred Stock certificate shall be valid nevertheless.
A 4.50% Convertible Preferred Stock certificate shall not be valid
until an authorized signatory of the Transfer Agent and the Security Registrar
manually signs the certificate of authentication on the 4.50% Convertible
Preferred Stock certificate. The signature shall be conclusive evidence that the
4.50% Convertible Preferred Stock certificate has been authenticated under this
Certificate of Designation.
The Transfer Agent shall authenticate and deliver certificates for up
to 5,000,000 shares of 4.50% Convertible Preferred Stock for original issue upon
a written order of the Corporation signed by two Officers or by an Officer and
an Assistant Treasurer of the Corporation. Such order shall specify the number
of shares of 4.50% Convertible Preferred Stock to be authenticated and the date
on which the original issue of 4.50% Convertible Preferred Stock is to be
authenticated.
The Transfer Agent may appoint an authenticating agent reasonably
acceptable to the Corporation to authenticate the certificates for 4.50%
Convertible Preferred Stock. Unless limited by the terms of such appointment, an
authenticating agent may authenticate certificates for 4.50% Convertible
Preferred Stock whenever the Transfer Agent may do so. Each reference in this
Certificate of Designation to authentication by the Transfer Agent includes
authentication by such agent. An authenticating agent has the same rights as the
Transfer Agent or agent for service of notices and demands.
(c) Transfer and Exchange of Global 4.50% Convertible Preferred Stock.
The transfer and exchange of Global 4.50% Convertible Preferred Stock or
beneficial interests therein shall be effected through DTC, in accordance with
this Certificate of Designation (including applicable restrictions on transfer
set forth herein, if any) and the procedures of DTC therefor.
(i) Restrictions on Transfer and Exchange of Global 4.50%
Convertible Preferred Stock.
(1) Notwithstanding any other provisions of this Certificate of
Designation (other than the provisions set forth in Section
11(c)(ii)), Global 4.50% Convertible Preferred Stock may not
be transferred as a whole except by DTC to a nominee of DTC
or by a nominee of DTC to DTC or another nominee of DTC or
by DTC or any such nominee to a successor depository or a
nominee of such successor depository.
(2) In the event that the Global 4.50% Convertible Preferred
Stock is exchanged for 4.50% Convertible Preferred Stock in
definitive registered form pursuant to Section 11(c)(ii)
prior to the effectiveness of a Shelf Registration Statement
with respect to such securities, such 4.50% Convertible
Preferred Stock may be exchanged only in accordance with
such procedures as are substantially consistent with the
provisions of this Section 11(c) (including the
certification requirements set forth in the Exhibits to this
Certificate of Designation intended to ensure that such
transfers comply with Rule 144A or such other applicable
exemption from registration under the Securities Act, as the
case may be) and such other procedures as may from time to
time be adopted by the Corporation.
(3) The 4.50% Convertible Preferred Stock, and any shares of
Common Stock distributed pursuant to the conversion of the
4.50% Convertible Preferred Stock,
32
may not be sold or otherwise transferred until the
expiration of two years following the date of payment for
and delivery of the 4.50% Convertible Preferred Stock,
except (a) pursuant to registration under the Securities
Act, (b) in accordance with Rule 144 (if available) or Rule
144A under the Securities Act (if available) or (c) in
offshore transactions in reliance on Regulation S, and will
bear a legend to this effect.
(ii) Authentication of Certificated 4.50% Convertible Preferred
Stock. If at any time:
(1) DTC notifies the Corporation that DTC is unwilling or unable
to continue as depository for the Global 4.50% Convertible
Preferred Stock and a successor depository for the Global
4.50% Convertible Preferred Stock is not appointed by the
Corporation within 90 days after delivery of such notice;
(2) DTC ceases to be a clearing agency registered under the
Exchange Act and a successor depository for the Global 4.50%
Convertible Preferred Stock is not appointed by the
Corporation within 90 days; or
(3) the Corporation, in its sole discretion, notifies the
Transfer Agent in writing that it elects to cause the
issuance of Certificated 4.50% Convertible Preferred Stock
under this Certificate of Designation,
then the Corporation will execute, and the Transfer Agent,
upon receipt of a written order of the Corporation signed by
two Officers or by an Officer and an Assistant Treasurer of
the Corporation requesting the authentication and delivery
of Certificated 4.50% Convertible Preferred Stock to the
Persons designated by the Corporation, will authenticate and
deliver Certificated 4.50% Convertible Preferred Stock equal
to the number of shares of 4.50% Convertible Preferred Stock
represented by the Global 4.50% Convertible Preferred Stock,
in exchange for such Global 4.50% Convertible Preferred
Stock.
(iii) Cancellation or Adjustment of Global 4.50% Convertible Preferred
Stock. At such time as all beneficial interests in Global 4.50%
Convertible Preferred Stock have either been exchanged for
Certificated 4.50% Convertible Preferred Stock, converted or
canceled, such Global 4.50% Convertible Preferred Stock shall be
returned to DTC for cancellation or retained and canceled by the
Transfer Agent. At any time prior to such cancellation, if any
beneficial interest in Global 4.50% Convertible Preferred Stock
is exchanged for Certificated 4.50% Convertible Preferred Stock,
converted or canceled, the number of shares of 4.50% Convertible
Preferred Stock represented by such Global 4.50% Convertible
Preferred Stock shall be reduced and an adjustment shall be made
on the books and records of the Transfer Agent with respect to
such Global 4.50% Convertible Preferred Stock, by the Transfer
Agent or DTC, to reflect such reduction.
(iv) Obligations with Respect to Transfers and Exchanges of 4.50%
Convertible Preferred Stock.
33
(1) To permit registrations of transfers and exchanges,
the Corporation shall execute and the Transfer Agent shall
authenticate Certificated 4.50% Convertible Preferred Stock and
Global 4.50% Convertible Preferred Stock as required pursuant to
the provisions of this Section 11(c).
(2) All Certificated 4.50% Convertible Preferred Stock and
Global 4.50% Convertible Preferred Stock issued upon any
registration of transfer or exchange of Certificated 4.50%
Convertible Preferred Stock or Global 4.50% Convertible Preferred
Stock shall be the valid obligations of the Corporation, entitled
to the same benefits under this Certificate of Designation as the
Certificated 4.50% Convertible Preferred Stock or Global 4.50%
Convertible Preferred Stock surrendered upon such registration of
transfer or exchange.
(3) Prior to due presentment for registration of transfer
of any shares of 4.50% Convertible Preferred Stock, the Transfer
Agent and the Corporation may deem and treat the Person in whose
name such shares of 4.50% Convertible Preferred Stock are
registered as the absolute owner of such 4.50% Convertible
Preferred Stock and neither the Transfer Agent nor the
Corporation shall be affected by notice to the contrary.
(4) No service charge shall be made to a Holder for any
registration of transfer or exchange upon surrender of any 4.50%
Convertible Preferred Stock certificate or Common Stock
certificate at the office of the Transfer Agent maintained for
that purpose. However, the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of 4.50% Convertible Preferred Stock certificates or
Common Stock certificates.
(5) Upon any sale or transfer of shares of 4.50%
Convertible Preferred Stock (including any 4.50% Convertible
Preferred Stock represented by a Global 4.50% Convertible
Preferred Stock certificate) or of certificated Common Stock
pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 or another exemption from
registration under the Securities Act (and based upon an Opinion
of Counsel reasonably satisfactory to the Corporation if it so
requests):
(A) in the case of any Certificated 4.50%
Convertible Preferred Stock or certificated Common Stock,
the Corporation and the Transfer Agent shall permit the
holder thereof to exchange such 4.50% Convertible
Preferred Stock or certificated Common Stock for
Certificated 4.50% Convertible Preferred Stock or
certificated Common Stock, as the case may be, that does
not bear the restrictive legend set forth on Exhibit C and
rescind any restriction on the transfer of such 4.50%
Convertible Preferred Stock or Common Stock issuable in
respect of the conversion of the 4.50% Convertible
Preferred Stock; and
(B) in the case of any Global 4.50% Convertible
Preferred Stock, such 4.50% Convertible Preferred Stock
shall not be required to bear the restrictive legend set
forth on Exhibit C; provided, however, that with respect
to any request for an exchange of 4.50% Convertible
Preferred Stock that is represented by Global 4.50%
Convertible Preferred Stock for Certificated 4.50%
Convertible Preferred Stock that does not bear a
restrictive as set forth on
34
Exhibit C in connection with a sale or transfer thereof
pursuant to Rule 144 or another exemption from registration
under the Securities Act (and based upon an Opinion of
Counsel if the Corporation so requests), the Holder thereof
shall certify in writing to the Transfer Agent that such
request is being made pursuant to such exemption (such
certification to be substantially in the form of Exhibit D
hereto).
(v) No Obligation of the Transfer Agent.
(1) The Transfer Agent shall have no responsibility or
obligation to any beneficial owner of Global 4.50%
Convertible Preferred Stock, a member of, or a participant
in, DTC or any other Person with respect to the accuracy of
the records of DTC or its nominee or of any participant or
member thereof, with respect to any ownership interest in
the 4.50% Convertible Preferred Stock or with respect to the
delivery to any participant, member, beneficial owner or
other Person (other than DTC) of any notice or the payment
of any amount, under or with respect to such Global 4.50%
Convertible Preferred Stock. All notices and communications
to be given to the Holders and all payments to be made to
Holders under the 4.50% Convertible Preferred Stock shall be
given or made only to the Holders (which shall be DTC or its
nominee in the case of the Global 4.50% Convertible
Preferred Stock). The rights of beneficial owners in any
Global 4.50% Convertible Preferred Stock shall be exercised
only through DTC subject to the applicable rules and
procedures of DTC. The Transfer Agent may rely and shall be
fully protected in relying upon information furnished by DTC
with respect to its members, participants and any beneficial
owners.
(2) The Transfer Agent shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Certificate of
Designation or under applicable law with respect to any
transfer of any interest in any 4.50% Convertible Preferred
Stock (including any transfers between or among DTC
participants, members or beneficial owners in any Global
4.50% Convertible Preferred Stock) other than to require
delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Certificate of
Designation, and to examine the same to determine
substantial compliance as to form with the express
requirements hereof.
(d) Replacement Certificates. If a mutilated 4.50% Convertible Preferred
Stock certificate is surrendered to the Transfer Agent or if the Holder of a
4.50% Convertible Preferred Stock certificate claims that the 4.50% Convertible
Preferred Stock certificate has been lost, destroyed or wrongfully taken, the
Corporation shall issue and the Transfer Agent shall countersign a replacement
4.50% Convertible Preferred Stock certificate if the reasonable requirements of
the Transfer Agent are met. If required by the Transfer Agent or the
Corporation, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Corporation and the Transfer Agent to protect the Corporation
and the Transfer Agent from any loss which either of them may suffer if a 4.50%
Convertible Preferred Stock certificate is replaced. The Corporation and the
Transfer Agent may charge the Holder for their expenses in replacing a 4.50%
Convertible Preferred Stock certificate.
12. Additional Rights of Holders. In addition to the rights provided
to Holders under this
35
Certificate of Designation, Holders shall have the rights set forth in the
Registration Rights Agreement.
13. Other Provisions.
(a) With respect to any notice to a Holder of shares of 4.50%
Convertible Preferred Stock required to be provided hereunder, neither failure
to mail such notice, nor any defect therein or in the mailing thereof, to any
particular Holder shall affect the sufficiency of the notice or the validity of
the proceedings referred to in such notice with respect to the other Holders or
affect the legality or validity of any distribution, rights, warrant,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding-up, or the vote upon any such action. Any notice which
was mailed in the manner herein provided shall be conclusively presumed to have
been duly given whether or not the Holder receives the notice.
(b) Shares of 4.50% Convertible Preferred Stock issued and reacquired
will be retired and canceled promptly after reacquisition thereof and, upon
compliance with the applicable requirements of Michigan law, have the status of
authorized but unissued shares of preferred stock of the Corporation
undesignated as to series and may with any and all other authorized but unissued
shares of preferred stock of the Corporation be designated or redesignated and
issued or reissued, as the case may be, as part of any series of preferred stock
of the Corporation, except that any issuance or reissuance of shares of 4.50%
Convertible Preferred Stock must be in compliance with this Certificate of
Designation.
(c) The shares of 4.50% Convertible Preferred Stock shall be issuable
only in whole shares.
(d) All notice periods referred to herein shall commence on the date of
the mailing of the applicable notice.
36
EXHIBIT A
FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE
To: CMS Energy Corporation
The undersigned registered holder of shares of 4.50% Convertible
Preferred Stock hereby acknowledges receipt of a notice from CMS Energy
Corporation (the "Corporation") as to the occurrence of a Fundamental Change
with respect to the Corporation and requests and instructs the Corporation to
repurchase the shares of 4.50% Convertible Preferred Stock ($50.00 liquidation
preference or an integral multiple thereof) designated below, in accordance with
the terms of the Certificate of Designation referred to in such 4.50%
Convertible Preferred Stock and directs that the check of the Corporation, in
payment for these shares of 4.50% Convertible Preferred Stock, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If any portion of these shares of 4.50% Convertible Preferred
Stock are not repurchased and are to be issued in the name of a Person other
than the undersigned, the undersigned shall pay all transfer taxes payable with
respect thereto.
Dated: ----------------------------------
Signature(s)
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a major stock
exchange if shares of 4.50%
Convertible Preferred Stock are to
be delivered other than to or in
the name of the registered holder.
----------------------------------
Signature Guarantee
Fill in for registration of 4.50%
Convertible Preferred Stock if to
be issued other than to and in the
name of registered holder:
Number of shares of 4.50%
- ------------------------------------ Convertible Preferred Stock to be
(Name) purchased (if less than all are
to be purchased):
- ------------------------------------ ----------------------------------
(Street Address) Certificate Number (if shares of
4.50% Convertible Preferred Stock
- ------------------------------------ are Certificated):
(City, state and zip code)
Please print name and address
Social Security or other taxpayer
number:
----------------------------------
37
EXHIBIT B
FORM OF CONVERSION NOTICE
To: CMS Energy Corporation
The undersigned registered holder of these shares of 4.50% Convertible
Preferred Stock hereby exercises the option to convert these shares of 4.50%
Convertible Preferred Stock, or portion hereof (which is $50.00 liquidation
preference or an integral multiple thereof) designated below, for shares of
Common Stock of CMS Energy Corporation in accordance with the terms of the
Certificate of Designation referred to in the 4.50% Convertible Preferred Stock,
and directs that the shares, if any, issuable and deliverable upon such
conversion, together with any check for cash deliverable upon such conversion,
and any shares of 4.50% Convertible Preferred Stock representing any unconverted
shares hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion of the 4.50%
Convertible Preferred Stock not converted are to be issued in the name of a
Person other than the undersigned, the undersigned shall pay all transfer taxes
payable with respect thereto.
This notice shall be deemed to be an irrevocable exercise of the option
to convert these shares of 4.50% Convertible Preferred Stock.
Dated: ----------------------------------
Signature(s)
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a major stock
exchange if shares of Common Stock
are to be issued, or shares of
4.50% Convertible Preferred Stock
to be delivered, other than to or
in the name of the registered
holder.
----------------------------------
Signature Guarantee
Fill in for registration of shares if
to be delivered, and shares of 4.50%
Convertible Preferred Stock if to be
issued other than to and in the name
of registered holder:
Number of shares of 4.50%
- ------------------------------------- Convertible Preferred Stock to be
(Name) converted (if less than all):
- ------------------------------------- ----------------------------------
(Street Address) Certificate Number (if shares of
4.50% Convertible Preferred Stock
- ------------------------------------- are Certificated):
(City, state and zip code)
Please print name and address
Social Security or other taxpayer
number:
----------------------------------
38
EXHIBIT C
FORM OF PREFERRED STOCK
FACE OF SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE
UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS SECURITY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE COMMON
STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A")) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (IV) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (V) TO CMS ENERGY CORPORATION
OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (I) THROUGH (VI) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY FROM
IT OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
THE HOLDER OF THIS SECURITY AGREES THAT SUCH HOLDER WILL NOT ENGAGE IN
HEDGING TRANSACTIONS INVOLVING THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR
RESALES AND OTHER TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE
LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO
THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO
ANY SUCH AMENDMENT OR SUPPLEMENT.
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS
OF, A REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 5, 2003 ENTERED INTO
BY THE COMPANY FOR THE BENEFIT OF CERTAIN HOLDERS OF SECURITIES FROM TIME TO
TIME.
39
Certificate Number Number of Shares
[ ] [ ]
CUSIP NO.: ______
4.50% Cumulative Convertible Preferred Stock (par value $0.01) (liquidation
preference $50 per share)
of
CMS Energy Corporation
CMS Energy Corporation, a Michigan corporation (the "Corporation"),
hereby certifies that [______] (the "Holder") is the registered owner of
[______] fully paid and non-assessable preferred securities of the Corporation
designated the 4.50% Cumulative Convertible Preferred Stock (par value $0.01)
(liquidation preference $50 per share) (the "4.50% Convertible Preferred
Stock"). The shares of 4.50% Convertible Preferred Stock are transferable on the
books and records of the Transfer Agent, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer. The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the 4.50% Convertible Preferred Stock
represented hereby are issued and shall in all respects be subject to the
provisions of the Certificate of Designation dated December 4, 2003, as the same
may be amended from time to time (the "Certificate of Designation"). Capitalized
terms used herein but not defined shall have the meaning given them in the
Certificate of Designation. The Corporation will provide a copy of the
Certificate of Designation to a Holder without charge upon written request to
the Corporation at its principal place of business.
Reference is hereby made to select provisions of the 4.50% Convertible
Preferred Stock set forth on the reverse hereof, and to the Certificate of
Designation, which select provisions and the Certificate of Designation shall
for all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the Certificate
of Designation and is entitled to the benefits thereunder.
Unless the Transfer Agent's Certificate of Authentication hereon has
been properly executed, these shares of 4.50% Convertible Preferred Stock shall
not be entitled to any benefit under the Certificate of Designation or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has executed this certificate this
____ day of __________, 2003.
CMS ENERGY CORPORATION
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
40
TRANSFER AGENT'S AND SECURITY REGISTRAR'S CERTIFICATE OF AUTHENTICATION
These are shares of the 4.50% Convertible Preferred Stock referred to in
the within-mentioned Certificate of Designation.
Dated: ______________, 2003
CMS Energy Corporation, as Transfer Agent and
Security Registrar
By:
------------------------------------------
Authorized Signatory
REVERSE OF SECURITY
Cash dividends on each share of 4.50% Convertible Preferred Stock shall
be payable at a rate per annum set forth on the face hereof or as provided in
the Certificate of Designation.
The shares of 4.50% Convertible Preferred Stock shall be convertible
into the Corporation's Common Stock in the manner and according to the terms set
forth in the Certificate of Designation.
The Corporation will furnish without charge to each holder who so
requests the powers, designations, preferences and relative, participating,
optional or other rights of each class of stock and the qualifications,
limitations or restrictions of such preferences and/or rights.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers the shares of
4.50% Convertible Preferred Stock evidenced hereby to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints ____________ agent to transfer the shares of
4.50% Convertible Preferred Stock evidenced hereby on the books of the Transfer
Agent. The agent may substitute another to act for him or her.
Date:
--------------------------------------------------------------
Signature:
---------------------------------------------------------
(Sign exactly as your name appears on the other side of this 4.50%
Convertible Preferred Stock certificate)
Signature Guarantee: (1)
-------------------------------------------
(1) (Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Transfer Agent, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Transfer Agent in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.)
41
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF PREFERRED STOCK
Re: 4.50% Cumulative Convertible Preferred Stock (the "4.50%
Convertible Preferred Stock") of CMS Energy Corporation
(the "Corporation")
This Certificate relates to ____ shares of 4.50% Convertible Preferred
Stock held in /_/ */ book-entry or /_/ */ definitive form by __________________
(the "Transferor").
The Transferor*:
/_/ has requested the Transfer Agent by written order to deliver in
exchange for its beneficial interest in the 4.50% Convertible Preferred Stock
held by the Depository shares of 4.50% Convertible Preferred Stock in
definitive, registered form equal to its beneficial interest in such 4.50%
Convertible Preferred Stock (or the portion thereof indicated above); or
/_/ has requested the Transfer Agent by written order to exchange or
register the transfer of 4.50% Convertible Preferred Stock.
In connection with such request and in respect of such 4.50% Convertible
Preferred Stock, the Transferor does hereby certify that the Transferor is
familiar with the Certificate of Designation relating to the above-captioned
4.50% Convertible Preferred Stock and that the transfer of this 4.50%
Convertible Preferred Stock does not require registration under the Securities
Act of 1933, as amended (the "Securities Act") because */:
/_/ Such 4.50% Convertible Preferred Stock is being acquired for the
Transferor's own account without transfer.
/_/ Such 4.50% Convertible Preferred Stock is being transferred to the
Corporation.
/_/ Such 4.50% Convertible Preferred Stock is being transferred to a
qualified institutional buyer (as defined in Rule 144A under the Securities
Act), in reliance on Rule 144A.
/_/ Such 4.50% Convertible Preferred Stock is being transferred in
reliance on and in compliance with another exemption from the registration
requirements of the Securities Act (and based on an Opinion of Counsel if the
Corporation so requests).
- --------
* /Please check applicable box.
[NAME OF TRANFEROR]
--------------------------------
By:
Its:
Date:
---------------------------
42
COMMON STOCK
The shares of Common Stock may be issued from time to time as the Board
of Directors shall determine for such consideration as shall be fixed by the
Board of Directors. Each share of Common Stock of the Corporation shall be equal
to every other share of said stock in every respect. The voting, distribution,
dividend, liquidation and other rights and limitations of the Common Stock are
as follows:
(1) Dividend Rights. Subject to the express terms of any outstanding
series of Preferred Stock, dividends or distributions may be declared and paid
in cash or otherwise upon the Common Stock out of the assets of the Corporation
legally available therefore.
(2) Voting Rights.
(a) Except as provided in Section 2(b) and except as otherwise
provided by law, the holders of Common Stock are entitled to one vote on
all matters as to which holders of Common Stock are entitled to vote.
Subject to Article XI, a majority of the votes cast by the holders of
Common Stock entitled to vote thereon is sufficient for the adoption of
any question presented except as otherwise required by law or these
Articles of Incorporation.
(b) Unless the vote or consent of the holders of a greater number
of shares shall then be required by law, the vote or consent of the
holders of a majority of all of the shares of Common Stock then
outstanding, shall be necessary for authorizing, effecting or validating
the merger or consolidation of the Corporation into or with any other
entity if such merger or consolidation would adversely affect the powers
or special rights of Common Stock either directly by amendment of these
Articles of Incorporation or indirectly by requiring the holders of
Common Stock to accept or retain, in such merger or consolidation,
anything other than (i) shares of Common Stock or (ii) shares of the
surviving or resulting corporation having, in either case, powers and
special rights identical to those of Common Stock prior to such merger or
consolidation.
(3) Liquidation Rights. Subject to Section 4, in the event of the
dissolution, liquidation or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation and after there shall have been paid or set apart
for the holders of Preferred Stock the full preferential amounts (including any
accumulated and unpaid dividends) to which they are entitled, the holders of
Common Stock shall be entitled to receive, on a per share basis, the assets of
the Corporation remaining for distribution to the holders of Common Stock.
Neither the merger or consolidation of the Corporation into or with any other
corporation, nor the merger or consolidation of any other corporation into or
with the Corporation nor any sale, transfer or lease of all or any part of the
assets of the Corporation, shall be deemed to be a dissolution, liquidation or
winding up for purposes of this Section 3.
(4) Subdivision or Combination. If the Corporation shall in any manner
subdivide (by stock split, stock dividend or otherwise) or combine (by reverse
stock split or otherwise) the outstanding shares of Common Stock, the voting and
liquidation rights of Common Stock shall be appropriately adjusted so as to
avoid any dilution in the aggregate voting or liquidation rights of Common
Stock.
43
ARTICLE IV
The address of the registered office is One Energy Plaza, Jackson,
Michigan, 49201. The name of the resident agent at the registered office is
Michael D. VanHemert. The mailing address of the registered office is One Energy
Plaza Jackson, Michigan 49201.
ARTICLE V
Special meetings of the shareholders may be called only by the Board of
Directors or by the Chairman of the Board.
ARTICLE VI
The number of directors of the Corporation shall be as specified in, or
determined in the manner provided in, the bylaws of the Corporation.
Any vacancies occurring on the Corporation's Board of Directors (whether
by reason of the death, resignation or removal of a director) may be filled by a
majority vote of the directors then in office although less than a quorum. An
increase in the number of members of the Board of Directors shall be construed
as creating a vacancy.
ARTICLE VII
A director may be removed by the affirmative vote of a majority of the
members of the Board of Directors then in office. A director also may be removed
by shareholders, but only for cause, at an annual meeting of shareholders and by
the affirmative vote of a majority of the shares then entitled to vote for the
election of directors. For purposes of this section, cause for removal shall be
construed to exist only if a director whose removal is proposed has been
convicted of a felony by a court of competent jurisdiction and such conviction
is no longer subject to appeal or has been adjudged by a court of competent
jurisdiction to be liable for willful misconduct in the performance of his or
her duty to the Corporation in a matter of substantial importance to the
Corporation and such adjudication is no longer subject to appeal.
ARTICLE VIII
A director shall not be personally liable to the Corporation or its
shareholders for monetary damages for breach of duty as a director except (i)
for a breach of the director's duty of loyalty to the Corporation or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for a violation of
Section 551(1) of the Michigan Business Corporation Act, and (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article VIII, and no modification to its
provisions by law, shall apply to, or have any effect upon, the liability or
alleged liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment, repeal or
modification.
ARTICLE IX
Each director and each officer of the Corporation shall be indemnified by the
Corporation to the fullest extent permitted by law against expenses (including
attorneys' fees), judgments, penalties,
44
fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with the defense of any proceeding in which he or she was or
is a party or is threatened to be made a party by reason of being or having been
a director or an officer of the Corporation. Such right of indemnification is
not exclusive of any other rights to which such director or officer may be
entitled under any now or hereafter existing statute, any other provision of
these Articles, bylaw, agreement, vote of shareholders or otherwise. If the
Business Corporation Act of the State of Michigan is amended after approval by
the shareholders of this Article IX to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Business Corporation Act of the State of Michigan, as so
amended. Any repeal or modification of this Article IX by the shareholders of
the Corporation shall not adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal or modification.
ARTICLE X
Each director shall be a shareholder of the Corporation and any director
ceasing to be a shareholder shall thereupon immediately cease to be a director.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or repeal any
provision in these Articles of Incorporation as permitted by law, and all rights
conferred on shareholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions of Articles V, VI, VII, VIII, IX
and this Article XI may not be amended, altered, changed or repealed unless such
amendment, alteration, change or repeal is approved by the affirmative vote of
the holders of not less than 75% of the outstanding shares entitled to vote
thereon.
45
Signed on May 28, 2004
CMS ENERGY CORPORATION
By: /s/ Michael D. VanHemert
-----------------------------------------
Michael D. VanHemert
Vice President and Corporate Secretary
STATE OF MICHIGAN )
) ss.
COUNTY OF JACKSON )
On this 28th day of May 2004, before me appeared Michael D. VanHemert, to
me personally known, who, being by me duly sworn, did say that he is Vice
President and Corporate Secretary of CMS Energy Corporation, which executed the
foregoing instrument, and that the seal affixed to said instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed in behalf of said corporation by authority of its Board of Directors and
shareholders, and said officer acknowledged said instrument to be the free act
and deed of said corporation.
/s/ Joyce H. Norkey
--------------------------------------
Joyce N. Norkey
Notary Public for Jackson County
State of Michigan
My Commission Expires September 2006