Exhibit 4.11
DTE ENERGY COMPANY
AND
BNY MIDWEST TRUST COMPANY
TRUSTEE
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SUPPLEMENTAL INDENTURE
DATED AS OF
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SUPPLEMENTING THE AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 9, 2001
PROVIDING FOR
SERIES % SENIOR NOTES DUE
SUPPLEMENTAL INDENTURE, dated as of the day of ,
(the "Supplemental Indenture"), between DTE ENERGY COMPANY, a corporation
organized and existing under the laws of the State of Michigan (the "Company"),
and BNY MIDWEST TRUST COMPANY, a Illinois trust company, having its principal
office in The City of Chicago, Illinois, as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Amended and Restated Indenture, dated as of April 9, 2001 (the "Original
Indenture"), as amended, supplemented or modified (as so amended, supplemented
or modified, the "Indenture") providing for the issuance by the Company from
time to time of its debt securities; and
WHEREAS, the Company now desires to provide for the issuance of a series of
its unsecured, senior [convertible/exchangeable] [appropriate revisions,
insertions and/or deletions to be made to the conversion provisions or otherwise
in the event of exchangeable securities] debt securities pursuant to the
Original Indenture; and
WHEREAS, the Company, in the exercise of the power and authority conferred
upon and reserved to it under the provisions of the Original Indenture,
including Section 901 thereof, and pursuant to appropriate resolutions of the
Board of Directors, has duly determined to make, execute and deliver to the
Trustee this Supplemental Indenture to the Original Indenture as permitted by
Section 201 and Section 301 of the Original Indenture in order to establish the
form or terms of, and to provide for the creation and issue of, a series of its
debt securities under the Original Indenture, which shall be known as the
" Series % Senior Notes due " (the "Notes"); [and]
[WHEREAS, DTE Energy Trust III, a Delaware statutory trust (the "Trust"),
has offered to the public $ aggregate liquidation amount of its %
Trust Preferred Securities (the "Trust Preferred Securities"), representing a
preferred undivided beneficial interest in the assets of the Trust, and proposes
to invest the proceeds from such offering, together with the proceeds of the
issuance and sale by the Trust to the Company of $ aggregate liquidation
amount of its % common securities (the "Common Securities" and, together
with the Trust Preferred Securities, the "Trust Securities"), in $
aggregate principal amount of the Notes; and]
WHEREAS, all things necessary to make such debt securities, when executed
by the Company and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this
Supplemental Indenture a valid, binding and legal agreement of the Company, have
been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to
establish the terms of a series of debt securities, and for and in consideration
of the premises and of the covenants contained in the Original Indenture and in
this Supplemental Indenture and for other good and valuable consideration the
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receipt and sufficiency of which are hereby acknowledged, it is mutually
covenanted and agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. Each capitalized term that is used herein and is
defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein; provided, that
[the following terms shall have the meanings given to them in the Agreement: (i)
Underwriting Agreement; (ii) Delaware Trustee; (iii) Distributions; (iv)
Investment Company Event; (v) Property Trustee; (vi) Trust Preferred Securities
Guarantee; (vii) Tax Event; (viii) Trust Preferred Security Certificate; (ix)
Administrative Trustee; and (x) Debenture; and, provided further that]:
["Additional Interest" has the meaning set forth in Section 204(e).]
["Agreement" means the Amended and Restated Trust Agreement of the Trust,
dated as of .]
["Applicable Procedures" means, with respect to any transfer or exchange of
beneficial ownership interests in a Global Debenture, the rules and procedures
of the Depositary that are applicable to such transfer or exchange.]
"Business Day" means any day other than a Saturday or Sunday or a day on
which commercial banks in The City of New York are required or authorized by law
or executive order to be closed.
["Capital Stock" means with respect to any Person organized as a
Corporation, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interest in (however
designated) corporate stock, and (ii) with respect to any Person that is not
organized as a Corporation, the partnership, membership or other equity
interests or participations in such Person.]
["Certificated Security" means a security in substantially the form
attached hereto as Exhibit A, except for the legend thereon, which is applicable
only to Global Notes.]
["Common Securities" has the meaning specified in the recitals above.]
["Company Notice" has the meaning specified in Section 705.]
["Company Notice Date" has the meaning specified in Section 705).]
["Conversion Agent" shall be the agent specified in Section 204(c).]
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["Conversion Date" has the meaning specified in Section 605.]
["Conversion Notice" has the meaning specified in Section 605.]
["Conversion Price" has the meaning specified in Section 602.]
["Conversion Rate" has the meaning specified in Section 601.]
["Coupon Rate" has the meaning set forth in Section 204(b).]
["Creditor" has the meaning set forth in Section 401(d).]
["Current Market Price," on any date, means, with respect to the Common
Stock of the Company, the average of the daily closing or last sale prices for
the shorter of:
(1) 10 consecutive Business Days ending on the last full trading day
on the exchange or market referred to in determining the daily closing or last
sale prices prior to the Time of Determination; or
(2) the period commencing on the date next succeeding the first public
announcement of the issuance of rights or warrants or distribution through the
last full trading day prior to the Time of Determination.]
["Disqualified Stock" means any Capital Stock of the Company that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder of the Capital Stock, in whole or in part, on or prior
to the date that is 91 days after the Stated Maturity of the Debentures.]
["Dissolution Event" means the dissolution of the Trust and distribution of
the Debentures held by the Property Trustee pro rata to the holders of the Trust
Securities in accordance with the Agreement, such event to occur at the option
of the Company at any time.]
["Excess Payment" means the excess of the aggregate of the cash and value
of other consideration paid by the Company or any of its Subsidiaries with
respect to shares acquired in a tender offer over the market value of such
acquired shares after giving effect to the completion of a tender offer.]
["Expiration Date" has the meaning specified in Section 609(d)(2).]
["Expiration Time" has the meaning specified in Section 609(d)(2).]
["Fundamental Change" has the meaning specified in Section 801(a).]
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["Fundamental Change Offer" means an offer by the Company to pay cash on
the Fundamental Change Purchase Date equal to the Fundamental Change Purchase
Price.]
["Fundamental Change Purchase Date" has the meaning specified in Section
801.]
["Fundamental Change Purchase Notice" has the meaning specified in Section
801.]
["Fundamental Change Purchase Price" means, in connection with a
Fundamental Change Offer, 100% of the aggregate principal amount of Debentures
to be purchased in such offer, together with interest accrued to, but excluding,
the Fundamental Change Purchase Date.]
["Global Debentures" means the Debentures that will initially be issued in
global form under a book-entry system, registered in the name of DTC, or its
nominee, who is hereby designated as U.S. Depositary and Depositary under the
Original Indenture.]
["Guarantee" means each guarantee agreement executed by the Company with
respect to the Trust Preferred Securities or similar securities issued by the
Trust or another financing entity pursuant to which the Company irrevocably and
unconditionally agrees to pay the guarantee payments (as defined in such
guarantee agreement) to the holders of such Trust Preferred Securities or
similar securities.]
["Market Price" has the meaning specified in Section 704.]
["NASDAQ" means NASDAQ Stock Market, Inc.]
["Non Book-Entry Trust Preferred Securities" has the meaning set forth in
Section 203(a).]
["NYSE" means the New York Stock Exchange.]
["Permitted Holder" has the meaning specified in Section 801.]
["Prepayment Price" has the meaning set forth in Section 301.]
["Purchase Date" means each of , , and
.]
["Purchase Notice" has the meaning specified in Section 701.]
["Purchase Price" means:
(1) in the event that the Company has elected to pay the Purchase
Price, in whole or in part, in shares of Common Stock, the number of shares of
common stock
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equal to the portion of the Purchase Price to be paid in Common Stock divided by
95% of the Market Price; or
(2) in the event that the Company has elected to pay the Purchase
Price in cash, $1,000 per $1,000 principal amount of Debentures; plus, in either
case, accrued and unpaid interest to, but excluding, the applicable Purchase
Date.]
["Purchased Shares" has the meaning specified in Section 609(d)(2).]
["purchases" has the meaning specified in Section 609(d)(3).]
["Rights Plan" means a plan of the Company providing for the issuance by
the Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock, which rights (i) are deemed to be transferred with
such shares of Common Stock, (ii) are not exercisable and (iii) are also issued
in respect of future issuances of Common Stock, in each case until the
occurrence of a specified event or events.]
["Sale Price" has the meaning specified in Section 704.]
["Special Event" means a Tax Event or an Investment Company Event, as the
case may be.]
["tender offer" has the meaning specified in Section 609(d)(3).]
["tendered shares" has the meaning specified in Section 609(d)(3).]
["Time of Determination" has the meaning specified in Section 609(d)(1).]
["Trading Day" means a day during which trading in securities generally
occurs on the NYSE or NASDAQ or, if the Common Stock is not listed on the NYSE
or NASDAQ, on the principal other national or regional securities exchange or
market on which the Common Stock is then listed or, if the Common Stock is not
listed on a national or regional securities exchange, on the other principal
market on which the Common Stock is then traded.]
["Triggering Distribution" has the meaning specified in Section 609(d)(1).]
["Trust" has the meaning specified in the recitals above.]
["Trust Preferred Securities" has the meaning specified in the recitals
above.]
["Trust Securities" has the meaning specified in the recitals above.]
SECTION 102. Section References. Each reference to a particular section set
forth in this Supplemental Indenture shall, unless the context otherwise
requires, refer to this Supplemental Indenture.
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ARTICLE TWO
TITLE AND TERMS OF THE SECURITIES; STATED MATURITY
SECTION 201. Title of the Securities; Stated Maturity. This Supplemental
Indenture hereby establishes a series of Securities, which shall be known as the
Company's " Series % Senior Notes due " (the "Notes").
The Stated Maturity on which the principal of the Notes shall be due and payable
will be .
SECTION 202. Rank. The Notes shall rank equally with all other unsecured
and unsubordinated indebtedness of the Company from time to time outstanding.
SECTION 203. Variations from the Original Indenture. [Section 1009 of the
Original Indenture shall be applicable to the Notes.] [Section 403(2) and
Section 403(3) [shall] [shall not] be applicable to the Notes; the Company's
obligations under Section 1009, without limitation, shall be subject to
defeasance in accordance with Section 403(3).]
[Insert for convertible/exchangeable Notes] [The Original Indenture is
hereby amended, with respect to the Notes only, by replacing the final paragraph
in Section 307 of the Original Indenture with the following paragraphs:
On conversion of a Holder's Notes, such Holder shall not receive any cash
payment of interest. The Company's delivery to a Holder of the full number of
shares of Common Stock into which a Note is convertible, together with any cash
payment for such Holder's fractional shares, shall be deemed to satisfy the
Company's obligation to pay the principal amount at maturity of the Note and to
satisfy the Company's obligation to pay accrued interest attributable to the
period from the most recent Interest Payment Date through the Conversion Date
(unless such Notes or portions thereof have been called for redemption in
accordance with Article Three hereof on a Redemption Date that occurs between a
Regular Record Date and the Interest Payment Date to which it relates, in which
case any accrued interest shall be paid to the Holders of record of such Notes
at the close of business on such Regular Record Date).
Notwithstanding the above, if any Notes are converted after a Regular
Record Date but prior to the next succeeding Interest Payment Date, Holders of
such Notes at the close of business on such Regular Record Date shall receive
the interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Such Notes, upon surrender for conversion, must
be accompanied by funds equal to the amount of interest payable on the principal
amount of the Notes so converted, unless such Notes have been called for
redemption on a Redemption Date that occurs between a Regular Record Date and
the Interest Payment Date to which it relates, in which case no such payment
shall be required.]
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SECTION 204. Amount and Denominations; DTC. (a) The aggregate principal
amount of the Notes that may be issued under this Supplemental Indenture is
limited initially to $ (except as provided in Section 301(2) of
the Original Indenture); provided that the Company may, without the consent of
the Holders of the Outstanding Notes, "reopen" this series of Securities so as
to increase the aggregate principal amount of the Notes Outstanding in
compliance with the procedures set forth in the Original Indenture, including
Section 301 and Section 303 thereof, so long as any such additional Notes have
the same tenor and terms (including, without limitation, rights to receive
accrued and unpaid interest) as the Notes then Outstanding. No additional Notes
may be issued if an Event of Default has occurred. The Notes shall be issuable
only in fully registered form and, as permitted by Section 301 and Section 302
of the Original Indenture, in denominations of [$1,000] and integral multiples
thereof. The Notes will initially be issued in global form (the "Global Notes")
under a book-entry system, registered in the name of The Depository Trust
Company, as depository ("DTC"), or its nominee, which is hereby designated as
"U.S. Depositary" and "Depositary" under the Original Indenture.
(b) Further to Section 305 of the Original Indenture, any Global Note shall
be exchangeable for Notes registered in the name of, and a transfer of a Global
Note of any series may be registered to, any Person other than the Depositary
for such Note or its nominee only if (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global Note or
if at any time such Depositary ceases to be a clearing agency registered under
the Exchange Act, and, in either such case, the Company does not appoint a
successor Depositary within 90 days thereafter, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Note shall be so
exchangeable and the transfer thereof so registrable or (iii) there shall have
occurred and be continuing an Event of Default or an event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
with respect to the Notes of such series. Upon the occurrence in respect of any
Global Note of any series of any or more of the conditions specified in clause
(i), (ii) or (iii) of the preceding sentence, such Global Note may be exchanged
for Notes registered in the name of, and the transfer of such Global Note may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees) as such Depositary, in the case of an
exchange, and the Company, in the case of a transfer, shall direct.
[Insert in connection with issuance of Trust Preferred Securities] [In
connection with a Dissolution Event,
(i) the Notes in certificated form may be presented to the Trustee by
the Property Trustee in exchange for a global Note in an aggregate principal
amount equal to the aggregate principal amount of all outstanding Notes (a
"Global Note"), to be registered in the name of the Depositary, or its nominee,
and delivered by the Trustee to the Depositary for crediting to the accounts of
its participants pursuant to the instructions of the Administrative Trustees.
The Company upon any such presentation shall execute a Global Note in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Original Indenture and this
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Supplemental Indenture. Payments on the Notes issued as a Global Note will be
made to the Depositary; and
(ii) if any Trust Preferred Securities are held in non book-entry
certificated form, the Notes in certificated form may be presented to the
Trustee by the Property Trustee and any Trust Preferred Security Certificate
which represents Trust Preferred Securities other than Trust Preferred
Securities held by the Depositary or its nominee ("Non Book-Entry Trust
Preferred Securities") will be deemed to represent beneficial interests in Notes
presented to the Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry Trust
Preferred Securities until such Trust Preferred Security Certificates
represented to the Security Registrar for transfer or reissuance, at which time
such Trust Preferred Security Certificates will be canceled and a Note,
registered in the name of the holder of the Trust Preferred Security Certificate
or the transferee of the holder of such Trust Preferred Security Certificate, as
the case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Trust Preferred Security Certificate canceled, will be
executed by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Original Indenture and this Supplemental
Indenture. On issue of such Notes, Notes with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee will be deemed
to have been canceled.]
SECTION 205. Terms of the Notes.
(a) [The Notes shall bear interest at the rate of % per annum on the
principal amount thereof from the date of issuance or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
until the principal of the Notes becomes due and payable, and on any overdue
principal and premium and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum during such overdue period. Interest on this Note will be
payable [semiannually][quarterly] in arrears on
[, , ] and of each year (each
such date, an "Interest Payment Date"), commencing .]
[The amount of interest payable for any period shall be computed on the basis of
[twelve 30-day months and a 360-day year][a 360-day year and the actual number
of days elapsed in such period] [the actual number of days in the year] and, for
any period shorter than a full [semiannual][quarterly] interest period, will be
computed on the basis of the actual number of days elapsed in such period.]
[If the Notes are not to bear interest prior to Stated Maturity,
insert] [The principal of the Notes shall not bear interest except in the case
of a default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal and any overdue premium
shall bear interest at the rate of [yield to maturity] % per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment of
such principal has been made or duly provided for. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on any
overdue
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principal or premium that is not so paid on demand shall bear interest at the
rate of [yield to maturity] % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
(b) In the event that any Interest Payment Date, redemption date or other
date of Maturity of the Notes is not a Business Day, then payment of the amount
payable on such date will be made on the next succeeding day which is a Business
Day [(and without any interest or other payment in respect of any such delay),]
[except that, if such Business Day is in the next succeeding calendar
[year][month], such payment shall be made on the immediately preceding Business
Day] [without reduction in the amount due to such early payment], in each case
with the same force and effect as if made on such date.] The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date with respect to any Note will, as provided in the Original
Indenture, be paid to the person in whose name the Note (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the close
of business on the relevant record date for such interest installment, which
shall be the [fifteenth calendar day (whether or not a Business Day)] prior to
the relevant Interest Payment Date (the "Regular Record Date"). Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holders on such Regular Record Date, and
may either be paid to the person in whose name the Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of this series
of Notes not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Original Indenture. The principal of [, and premium, if any,] and the
interest on the Notes shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at the close of business on the Regular
Record Date at such address as shall appear in the Security Register.]
[Alternate provisions in connection with issuance of Trust Preferred
Securities] [Each Note will bear interest at the rate of % per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and, to the extent
that payment of such interest is enforceable under applicable law, on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable quarterly in arrears on , ,
and of each year (each, an
"Interest Payment Date"), commencing on , to the Person in
whose name such Note or any predecessor Note is registered at the close of
business on the relevant record date, which will be, as long as the Trust
Preferred Securities remain in book-entry form (or if no Trust
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Preferred Securities remain outstanding, as long as the Notes remain in book
entry form), one Business Day prior to the relevant Interest Payment Date and,
in the event the Trust Preferred Securities are not in book-entry form (or if no
Trust Preferred Securities remain outstanding, in the event the Notes are not in
book entry form), the 15th calendar day, whether or not a Business Day,
preceding the applicable Interest Payment Date.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. Except as provided in the following
sentence, the amount of interest payable for any period shorter than a full
quarterly period for which interest is computed, will be computed on the basis
of the actual number of days elapsed per calendar month (but not to exceed 30
days in any month). In the event that any date on which interest is payable on
the Notes is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on the date that such interest otherwise would have been
payable.
[In addition to any right of Direct Action granted under Section 3.8(e) of
the Trust Agreement to the holders of Trust Preferred Securities, if the
Property Trustee fails to enforce its rights under the Trust Agreement or the
Indenture to the fullest extent permitted by law and subject to the terms of the
Trust Agreement and the Indenture, then a holder of Trust Preferred Securities
may directly institute a proceeding against the Company to enforce the Property
Trustee's rights under the Trust Agreement or the Indenture without first
instituting a legal proceeding against the Property Trustee or any other
person.]]
(c) [Insert for Original Issue Discount Notes] [If an Event of Default with
respect to Notes of this series shall occur and be continuing, an amount of
principal of the Notes of this series (the "Acceleration Amount") may be
declared due and payable in the manner and with the effect provided in the
Original Indenture. In case of a declaration of acceleration on or before
and on in any year, the
Acceleration Amount per principal amount at Stated
Maturity of the Notes shall be equal to the amount set forth in respect of such
date below:
Acceleration Amount
Date of Acceleration per principal amount of Stated Maturity
- -------------------- ---------------------------------------
and in case of a declaration of acceleration on any other date, the Acceleration
Amount shall be equal to the Acceleration Amount as of the next preceding date
set forth in the table above, plus accrued original issue discount (computed in
accordance with the
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method used for calculating the amount of original issue discount that accrues
for U.S. Federal income tax purposes) from such next preceding date to the date
of declaration at the yield to maturity. For the purpose of this computation the
yield to maturity is %. Upon payment (i) of the Acceleration Amount so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Notes of this
series shall terminate.
(d) [Insert for convertible/exchangeable Notes] [The Company shall maintain
an office or agency where Notes may be presented for conversion ("Conversion
Agent"). The Company may have one or more additional conversion agents.
The Company shall enter into an appropriate agency agreement with any
Conversion Agent (other than the Trustee). The agreement shall implement the
provisions of the Indenture and this Supplemental Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Conversion Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant
to Section 606 of the Original Indenture. The Company or any Subsidiary or an
Affiliate of either of them may act as Conversion Agent.
The Company initially appoints the Trustee as Conversion Agent in
connection with the Notes.]
(e) Maturity, [conversion,] [purchase by the Company at the option of the
Holder] or redemption of a Note shall cause interest to cease to accrue on such
Note subject to the Company's obligation to pay interest on overdue amounts in
accordance with Section 503 of the Original Indenture and the terms of the
Notes.
(f) [Insert in connection with issuance of Trust Preferred Securities] [The
following shall be additional covenants of the Company with respect to the
Notes:
(i) So long as no Event of Default has occurred and is continuing, in
the event that (A) the Trust is the holder of all of the Outstanding Notes, (B)
a Tax Event in respect of the Trust shall have occurred and be continuing and
(iii) the Company shall not have (a) redeemed the Notes or (b) terminated the
Trust pursuant to the termination provisions of the related Trust Agreement, the
Company shall pay to the Trust (and any permitted successor or assign under the
related Trust Agreement) for so long as the Trust (or its permitted successor or
assignee) is the registered holder of any Notes, such additional amounts as may
be necessary in order that the amount of Distributions then due and payable by
the Trust on the related Trust Preferred Securities and Common Securities that
at any time remain outstanding in accordance with the terms thereof shall not be
reduced as a result of any additional taxes, duties and other governmental
charges to which the Trust has become subject as a result of such Tax Event (but
not including withholding taxes imposed on holders of such Trust Preferred
Securities and Common
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Securities) (the "Additional Interest"). Whenever in the Indenture or the Notes
there is a reference in any context to the payment of principal of or interest
on the Notes, such reference shall be deemed to include payment of the
Additional Interest provided for in this paragraph to the extent that, in such
context, Additional Interest is, were or would be payable in respect thereof
pursuant to the provisions of this Section and express reference to the payment
of Additional Interest (if applicable) in any provisions hereof shall not be
construed as excluding Additional Interest in those provisions hereof where such
express reference is not made.
(ii) The Company also covenants with each holder of Notes (A) to
maintain directly or indirectly 100% ownership of the Common Securities of the
Trust; provided, however, that any permitted successor or assignee of the
Company hereunder may succeed to the Company's ownership of such Common
Securities, (B) not to voluntarily terminate, wind up or liquidate the Trust,
except (x) in connection with a prepayment in full of the Notes or a
distribution of the Notes of such series to the holders of Trust Preferred
Securities in liquidation of the Trust or (y) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iii) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement, to cause such Trust to remain classified as a grantor trust
and not an association taxable as a corporation for United States federal income
tax purposes.]
(g) [The Company shall have the right to (i) shorten the Stated Maturity of
the principal of the Notes at any time to any date not earlier than the first
date on which the Company has the right, if any, to redeem the Notes, and (ii)
extend the Stated Maturity of the principal of the Notes at any time at its
election for one or more periods, but in no event to a date later than the
[49th] anniversary of the first interest payment date following the original
issue date of the Notes; provided that, if the Company elects to exercise its
right to extend the Stated Maturity of the principal of the Notes pursuant to
this clause (ii), at the time such election is made and at the time of extension
(A) the Company is not in bankruptcy, otherwise insolvent or in liquidation, (B)
the Company is not in default in the payment of any interest or principal on the
Notes, (C) the Trust is not in arrears on payments of Distributions on the Trust
Preferred Securities issued by the Trust, and (D) the Notes are rated not less
than BBB- by Standard & Poor's Ratings Services or Baa3 by Moody's Investors
Service, Inc. or the equivalent by any other nationally recognized statistical
rating organization. In the event the Company elects to shorten or extend the
Stated Maturity of the Notes, it shall give notice to the Trustee (not less than
45 days prior to the effectiveness thereof), and the Trustee shall give notice
of such shortening or extension to the holders not less than 30 nor more than 60
days prior to the effectiveness thereof.]
(h) [Each Note issued hereunder shall provide that the Company and, by its
acceptance of a Note or a beneficial interest therein, the holder of, and any
Person that acquires a beneficial interest in, such Note agree that for United
States federal, state and local tax purposes it is intended that such Note
constitute indebtedness.]
13
(i) The Notes shall have such other terms and provisions as are set forth
in the form of Note attached hereto as Exhibit A (all of which are incorporated
by reference in and made a part of this Supplemental Indenture as if set forth
in full at this place).
SECTION 206. Form of Notes. Attached hereto as Exhibit A is a form of the
Notes.
ARTICLE THREE
REDEMPTION OF THE NOTES
SECTION 301. Optional Redemption.
[[Except as provided in Articles Seven and Eight hereof] [t]The Notes are
not subject to repayment at the option of the Holders thereof.] [[Except as
provided in the form of Note attached hereto as Exhibit A,] [T][t]he Notes are
not redeemable by the Company prior to maturity.]
[Insert in connection with the issuance of Trust Preferred Securities] [The
Notes are prepayable prior to the Stated Maturity at the option of the Company
(i) in whole or in part, from time to time, or after
or (ii) at any time prior to , in whole but not
in part, within 180 days following the occurrence of a Special Event, in either
case at a prepayment price (the "Prepayment Price") equal to ,
plus accrued and unpaid interest thereon (including Additional Interest and
Compound Interest, if any) to the date of prepayment.
SECTION 302. Redemption Procedures.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Notes to be prepaid at its
registered address. Unless the Company defaults in payment of the [Prepayment
Price,] on and after the Redemption Date interest shall cease to accrue on such
Notes called for redemption. If the Notes are only partially redeemed pursuant
to Section 301, the Notes will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, that if at the time of redemption the
Notes are registered as a Global Note, the Depositary shall determine, in
accordance with its procedures, the principal amount of such Notes held by each
Depositary participant to be redeemed. The [Prepayment Price] shall be paid
prior to 12:00 noon, New York time, on the date of such prepayment or at such
earlier time as the Company determines; provided that the Company shall deposit
with the Trustee an amount sufficient to pay the [Prepayment Price] by 10:00
a.m., New York time, on the date such [Prepayment Price] is to be paid.
SECTION 303. [No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.]
14
[ARTICLE FOUR
EXPENSES
[Insert in connection with issuance of Trust Preferred Securities]
SECTION 401. Payment of Expenses.
In connection with the offering, sale and issuance of the Notes to the
Property Trustee and in connection with the sale of the Trust Securities by the
Trust, the Company, in its capacity as borrower with respect to the Notes,
shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Notes, including commissions to the underwriter payable pursuant to the
Underwriting Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 606 of the Original Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
with respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses (including reasonable counsel fees and
expenses) of the Property Trustee, the Delaware Trustee and the Administrative
Trustees (including any amounts payable under Article 10 of the Agreement), the
costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Property Trustee of the
rights of the holders of the Trust Preferred Securities);
(c) be liable for any indemnification obligations arising with respect to
the Agreement; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
The Company's obligations under this Section 401 shall be for the benefit
of, and shall be enforceable by, any Person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the Company's
obligations under this Section 401 directly against the Company and the Company
irrevocably waives any right of remedy to require that any such Creditor take
any action against the Trust or any other Person
15
before proceeding against the Company. The Company agrees to execute such
additional agreements as may be necessary or desirable in order to give full
effect to the provisions of this Section 401.
The provisions of this Section shall survive the termination of this
Supplemental Indenture.
SECTION 402. Payment Upon Resignation or Removal.
Upon termination of this Supplemental Indenture or the Indenture or the
removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation that are payable pursuant to Section 606 of the Original
Indenture. Upon termination of the Agreement or the removal or resignation of
the Delaware Trustee or the Property Trustee, as the case may be, pursuant to
Section 5.6 of the Agreement, the Company shall pay to the Delaware Trustee or
the Property Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.]
[ARTICLE FIVE
COVENANT TO LIST ON EXCHANGE
[Insert in connection with issuance of trust preferred securities]
SECTION 501. Listing on an Exchange.
If the Notes are distributed to the holders of the Securities issued by the
Trust, and the Trust Preferred Securities are then so listed, the Company will
use its best efforts to list such Notes on the New York Stock Exchange, Inc. or
on such other exchange as the Trust Preferred Securities are then listed.]
[ARTICLE SIX
CONVERSION
[Insert for convertible/exchangeable notes]
SECTION 601. Conversion Rights.
Notes shall be convertible in accordance with their terms and in accordance
with this Article.
The initial conversion rate (the "Conversion Rate") is shares
of Common Stock per $1,000 principal amount of Notes, subject to adjustment as a
result of adjustments to the Conversion Price upon the occurrence of certain
events described in this Article. A Holder of a Note otherwise entitled to a
fractional share shall receive cash
16
in an amount equal to the value of such fractional share based on the Sale Price
on the Trading Day immediately preceding the Conversion Date.
A Holder of Notes is not entitled to any rights of a holder of Common Stock
until such Holder has converted its Notes to Common Stock, and only to the
extent such Notes are deemed to have been converted into Common Stock pursuant
to this Article.
SECTION 602. Conversion Rights Based on Common Stock Price.
The Holder of any Note shall have the right, exercisable at any time after
the date of original issuance of the Note and before the close of business on
the Business Day immediately preceding the Stated Maturity of the Notes, to
convert the principal amount of the Note (or any portion of it that is an
integral multiple of $1,000) into shares of Common Stock at the Conversion
Price.
The "Conversion Price" per share shall initially equal $ and shall
be adjusted as described in Section 609.
SECTION 603. Conversion Rights Upon Notice of Redemption.
In case a Note or portion thereof is called for redemption pursuant to
Article Three hereof, a Holder of such Note may surrender it for conversion at
any time prior to the close of business on the Business Day immediately
preceding the Redemption Date for such Note, unless the Company shall default in
making the payment of the Redemption Price when due, in which case the
conversion right shall terminate at the close of business on the date such
default is cured and such Redemption Price is paid.
SECTION 604. Conversion Rights Upon Occurrence of Certain Corporate
Transactions.
If the Company is a party to a consolidation, merger or binding share
exchange pursuant to which the shares of Common Stock would be converted into
cash, securities or other property, at the effective time of the transaction,
the right to convert a Note into shares of Common Stock shall be changed into a
right to convert such Note, without the consent of any Holders of the Notes,
into the kind and amount of cash, securities or other property of the Company or
another Person which the Holder would have received if the Holder had converted
such Note immediately prior to the transaction.
SECTION 605. Conversion Procedures.
To convert a Note, a Holder must (a) complete and manually sign the
conversion notice (the "Conversion Notice") or a facsimile thereof on the back
of the Note and deliver such notice to a Conversion Agent, (b) surrender the
Note to a Conversion Agent, (c) furnish appropriate endorsements and transfer
documents if required by the Security Registrar or a Conversion Agent and (d)
pay any transfer or similar tax, if required. The date on which the Holder
satisfies all of those requirements is the "Conversion Date."
17
The Company shall deliver to the Holder through the Conversion Agent, as soon as
practicable but in any event no later than the fifth Business Day following the
Conversion Date, a certificate for the number of whole shares of Common Stock
issuable upon the conversion and cash in lieu of any fractional shares pursuant
to Section 606. Anything herein to the contrary notwithstanding, in the case of
Global Notes, conversion notices may be delivered and such Notes may be
surrendered for conversion in accordance with the Applicable Procedures of the
Depositary as in effect from time to time. The Person in whose name the Common
Stock certificate is registered shall be deemed to be a shareholder of record on
the Conversion Date; provided, however, that no surrender of a Note on any date
when the stock transfer books of the Company are 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; provided further,
however, that such conversion shall be at the Conversion Rate in effect on the
date that such Note shall have been surrendered for conversion, as if the stock
transfer books of the Company had not been closed. Upon conversion of a Note,
such Person shall no longer be a Holder of such Note.
No payment or adjustment shall be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article. On conversion of a Note, except as provided below in the case of
certain Notes or portions thereof called for redemption, that portion of accrued
and unpaid interest on the converted Note attributable to the period from the
most recent Interest Payment Date (or, if no Interest Payment Date has occurred,
from the date of original issuance of the Notes) through the Conversion Date
attributable to the most recent accrual date with respect to the converted Note
shall not be cancelled, extinguished or forfeited, but rather shall be deemed to
be paid in full to the Holder thereof through delivery of the Common Stock
(together with the cash payment, if any, in lieu of fractional shares), and the
fair market value of such shares of Common Stock (together with any such cash
payment in lieu of fractional shares) shall be treated as issued, to the extent
thereof, first in exchange for accrued and unpaid interest through the
Conversion Date and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the principal amount of the Note being converted pursuant to the provisions
hereof.
If a Holder converts more than one Note at the same time, the number of
shares of Common Stock issuable upon the conversion shall be based on the
aggregate principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Note equal in principal amount to the principal amount of the unconverted
portion of the Note surrendered.
18
Notes or portions thereof surrendered for conversion during the period from
the close of business on any Regular Record Date immediately preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (except for Notes called for redemption pursuant to Article Three hereof
on a Redemption Date that occurs during the period between the close of business
on a Regular Record Date and the close of business on the Interest Payment Date
to which such Regular Record Date relates) be accompanied by payment to the
Company or its order, in New York Clearing House funds or other funds acceptable
to the Company, of an amount equal to the interest payable on such Interest
Payment Date on the principal amount of Notes or portions thereof being
surrendered for conversion.
SECTION 606. Fractional Shares.
The Company shall not issue a fractional share of Common Stock upon
conversion of a Note. Instead, the Company will deliver cash for the current
market value of the fractional share. The current market value of a fractional
share of Common Stock shall be determined, to the nearest 1/1,000th of a share,
by multiplying the Sale Price on the Trading Day immediately prior to the
Conversion Date, of a full share of Common Stock by the fractional amount and
rounding the product to the nearest whole cent.
SECTION 607. Taxes on Conversion.
If a Holder converts a Note, the Company shall pay any documentary, stamp
or similar issue or transfer tax due on the issue of shares of Common Stock upon
such 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 certificate 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 will be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or regulation.
SECTION 608. Company to Provide Common Stock.
The Company shall, prior to issuance of any Notes under this Supplemental
Indenture, 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 all Notes Outstanding into shares of Common
Stock. All shares of Common Stock delivered upon conversion of the Notes shall
be newly issued shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any Lien or
adverse claim.
The Company shall endeavor promptly to comply with all federal and state
securities laws regulating the registration of the offer and delivery of shares
of Common Stock to a converting Holder upon conversion of Notes, if any, and
shall list or cause to
19
have quoted such shares of Common Stock on each national securities exchange or
other over-the-counter market or such other market on which the Common Stock is
then listed or quoted.
SECTION 609. Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time by the Company as
follows:
(a) In case the Company (i) issues shares of Common Stock as a dividend or
distribution on its Common Stock, (ii) subdivides its outstanding Common Stock
into a greater number of shares, or (iii) combines its outstanding Common Stock
into a smaller number of shares, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the Holder of any Notes thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Common Stock which it would have owned had such Notes been converted immediately
prior to the happening of such event. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of subdivision or combination.
(b) In case the Company issues rights or warrants to all or substantially
all holders of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock (or securities convertible into Common Stock) at a price
per share (or having a conversion price per share) less than the then Current
Market Price per share of Common Stock on the record date for the determination
of shareholders entitled to receive such rights or warrants, the Conversion
Price in effect immediately prior thereto shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction of which the numerator 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 of Common Stock so offered (or the aggregate conversion price of the
convertible securities so offered, which shall be determined by multiplying the
number of shares of Common Stock issuable upon conversion of such convertible
securities by the conversion price per share of Common Stock pursuant to the
terms of such convertible securities) would purchase at the then Current Market
Price per share of Common Stock on such record date, and of which the
denominator shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock offered (or
into which the convertible securities so offered are convertible). Such
adjustment shall be made successively whenever any such rights or warrants are
issued, and shall become effective immediately after such record date. If at the
end of the period during which such rights or warrants are exercisable not all
rights or warrants shall have been exercised, the adjusted Conversion Price
shall be immediately readjusted to what it would have been based upon the number
of additional shares of Common Stock actually issued (or the number of shares of
Common Stock issuable upon conversion of convertible securities actually
issued).
20
(c) In case the Company distributes to all or substantially all holders of
its Common Stock any shares of Capital Stock (other than dividends or
distributions of Common Stock on Common Stock to which Section 609(a) applies)
of the Company, evidences of indebtedness or other assets (including securities
of any Person other than the Company, but excluding all-cash distributions or
any rights or warrants referred to in Section 609(b)), then in each such case
the Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the current Conversion Price by a fraction of which
the numerator shall be the then Current Market Price per share of the Common
Stock on the record date referred to below less the fair market value on such
record date (as determined by the Board of Directors, whose determination shall
be conclusive evidence of such fair market value and which shall be evidenced by
an Officers' Certificate delivered to the Trustee) of the portion of the Capital
Stock, evidences of indebtedness or other non-cash assets so distributed
applicable to one share of Common Stock (determined on the basis of the number
of shares of Common Stock outstanding on the record date) and of which the
denominator shall be the then Current Market Price per share of the Common Stock
on such record date. Such adjustment shall be made successively whenever any
such distribution is made and shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
distribution.
In the event that the Company implements a shareholder rights plan, such
rights plan may provide, if the Company so elects and subject to customary
exceptions and limitations, that upon conversion of the Notes the Holders will
receive, in addition to the Common Stock issuable upon such conversion, the
rights issued under such rights plan (notwithstanding the occurrence of an event
causing such rights to separate from the Common Stock at or prior to the time of
conversion) in lieu of making any adjustments to the Conversion Price in
accordance with the provisions of the immediately preceding paragraph. Any
distribution of rights or warrants pursuant to a shareholder rights plan
complying with the requirements set forth in the immediately preceding sentence
of this paragraph shall not constitute a distribution of rights or warrants for
the purposes of this Section 609(c) or any other provision of this Section 609.
(d)(1) In case the Company, by dividend or otherwise, at any time
distributes (a "Triggering Distribution") to all holders of its Common Stock
cash distributions in an aggregate amount that, together with the aggregate
amount of (A) any other cash distributions to all holders of Common Stock within
the 12 months preceding the date fixed for determining the stockholders entitled
to such Triggering Distribution and in respect of which no Conversion Price
adjustment pursuant to this Section 609 has been made and (B) all Excess
Payments in respect of each tender offer by the Company or any of its
Subsidiaries for Common Stock concluded within the 12 months preceding the date
of payment of the Triggering Distribution and in respect of which no Conversion
Price adjustment pursuant to this Section 609 has been made, exceeds an amount
equal to 15% of the product of the Current Market Price per share of Common
Stock on the date fixed for the determination of stockholders entitled to
receive such Triggering Distribution (the "Time of Determination") multiplied by
the number of shares of Common Stock outstanding on such date (excluding shares
held in the treasury of the Company), the
21
Conversion Price shall be decreased so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the Time of Determination by a fraction of which the numerator shall be the
Current Market Price per share of Common Stock at the Time of Determination less
the sum of the aggregate amount of cash so distributed, paid or payable within
such 12 months (including, without limitation, the Triggering Distribution)
applicable to one share of Common Stock (determined on the basis of the number
of shares of Common Stock outstanding at the Time of Determination), and the
denominator shall be such Current Market Price per share of Common Stock on the
Time of Determination, such decrease to become effective immediately prior to
the opening of business on the day following the date on which the Triggering
Distribution is paid.
(2) In the case of the payment of an Excess Payment in respect of a tender
offer by the Company or any Subsidiary for Common Stock that, together with the
aggregate amount of (A) any cash distributions made within the 12 months
preceding the date of the Expiration Date (as defined below) and in respect of
which no Conversion Price adjustment pursuant to this Section 609 has been made
and (B) all other Excess Payments in respect of each tender offer by the Company
or any Subsidiary for Common Stock concluded within the 12 months preceding the
Expiration Date and in respect of which no Conversion Price adjustment pursuant
to this Section 609 has been made, exceeds an amount equal to 15% of the product
of the Current Market Price per share of Common Stock as of the last date (the
"Expiration Date") tenders could have been made pursuant to such tender offer
(as it may be amended) (the last time at which such tenders could have been made
on the Expiration Date is hereinafter sometimes called the "Expiration Time")
multiplied by the number of shares of Common Stock outstanding (including
tendered shares but excluding any shares held in the treasury of the Company) at
the Expiration Time, then, immediately prior to the opening of business on the
day after the Expiration Date, the Conversion Price shall be decreased so that
the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to close of business on the Expiration Date by a
fraction of which the numerator shall be the product of the number of shares of
Common Stock outstanding (including tendered shares but excluding any shares
held in the treasury of the Company) at the Expiration Time multiplied by the
Current Market Price per share of Common Stock on the Trading Day next
succeeding the Expiration Date, and the denominator shall be the sum of (x) the
aggregate consideration (determined as aforesaid) payable to stockholders based
on the acceptance (up to any maximum specified in the terms of the tender offer)
of all shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares and excluding any shares held in the
treasury of the Company) at the Expiration Time and the Current Market Price per
share of Common Stock on the Trading Day next succeeding the Expiration Date,
such decrease to become effective immediately prior to the opening of business
on the day following the Expiration Date. In the event that the Company is
obligated to purchase shares pursuant to any such tender offer, but the Company
is permanently prevented by applicable law from effecting any or all such
purchases or any or all such purchases are rescinded, the Conversion Price shall
again be
22
adjusted to be the Conversion Price which would have been in effect based upon
the number of shares actually purchased. If the application of this Section
609(d)(2) to any tender offer would result in an increase in the Conversion
Price, no adjustment shall be made for such tender offer under this Section
609(d)(2).
(3) For purposes of this Section 609(d), the term "tender offer" shall mean
and include both tender offers and exchange offers, all references to
"purchases" of shares in tender offers (and all similar references) shall mean
and include both the purchase of shares in tender offers and the acquisition of
shares pursuant to exchange offers, and all references to "tendered shares" (and
all similar references) shall mean and include shares tendered in both tender
offers and exchange offers.
(e) [reserved]
(f) In any case in which this Section 609 requires that an adjustment be
made following a record date or a Time of Determination or Expiration Date, as
the case may be, established for purposes of this Section 609, the Company may
elect to defer (but only until five Business Days following the filing by the
Company with the Trustee of the certificate described in Section 612) issuing to
the Holder of any Notes converted after such record date or Time of
Determination or Expiration Date the shares of Common Stock and other Capital
Stock of the Company issuable upon such conversion over and above the shares of
Common Stock and other Capital Stock of the Company issuable upon such
conversion only on the basis of the Conversion Price prior to adjustment; and,
in lieu of the shares the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other appropriate
evidence prepared by the Company of the right to receive such shares. If any
distribution in respect of which an adjustment to the Conversion Price is
required to be made as of the record date or Time of Determination or Expiration
Date therefor is not thereafter made or paid by the Company for any reason, the
Conversion Price shall be readjusted to the Conversion Price which would then be
in effect if such record date had not been fixed or such effective date or Time
of Determination or Expiration Date had not occurred.
(g) Upon adjustment of the Conversion Price pursuant to this Section 609,
the Conversion Price shall be rounded to the nearest $.001, with $.0005 being
rounded upward.
(h) Upon the election by the Company to make a distribution as described in
paragraphs (b), (c) and (d) of this Section 609, which in the case of paragraph
(d) has a per share value equal to more than 15% of the Sale Price of shares of
Common Stock on the Trading Day preceding the Agreement date for such
distribution, the Company shall give notice to Holders of the Notes not less
than 20 days prior to the ex-dividend date for such distribution. Upon giving
such notice, Holders may surrender the Notes for conversion pursuant to this
Article Six at any time until the close of business on the Business Day prior to
the ex-dividend date or until the Company publicly announces that such
distribution will not be given effect.
23
SECTION 610. No Adjustment.
No adjustment in the Conversion Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 610 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 610 shall be made to the nearest cent or to the nearest
1/100th of a share, as the case may be.
Except pursuant to Section 614, no adjustment in the Conversion Price shall
be made by reason of the completion of a merger, consolidation or other
transaction effected with one of the Company's Affiliates for the purpose of (1)
changing the jurisdiction of organization of the Company or (2) effecting a
corporate reorganization including, without limitation, the implementation of a
holding company structure.
No adjustment need be made for issuances of Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for a change in the
par value or a change to no par value of the Common Stock.
SECTION 611. Adjustment for Tax Purposes.
The Company shall be entitled to make such adjustments in the Conversion
Price, in addition to those required by Section 609, as in its discretion shall
determine to be advisable in order that any stock dividends, subdivisions of
shares, distributions of rights to purchase stock or securities or distributions
of securities convertible into or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable to the recipient thereof.
SECTION 612. Notice of Adjustment.
Whenever the Conversion Price is adjusted, the Company shall promptly mail
to Holders a notice of the adjustment and file with the Trustee an Officers'
Certificate specifying the adjusted Conversion Price, and briefly stating the
facts requiring the adjustment and the manner of computing it.
SECTION 613. Notice of Certain Transactions.
In the event that:
(1) the Company takes any action which would require an adjustment in the
Conversion Price,
(2) the Company takes any action that requires a supplemental indenture
pursuant to Section 614, or
(3) there is a dissolution or liquidation of the Company,
24
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least fifteen days before such date. Failure to mail such notice
or any defect therein shall not affect the validity of any transaction referred
to in clause (1), (2) or (3) of this Section 613.
SECTION 614. Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege.
If any of the following shall occur, namely: (a) any reclassification or
change of shares of Common Stock issuable upon conversion of the Notes (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); (b) any
consolidation or merger in which the Company is a party consolidating with
another entity or merging with or into another entity other than a merger in
which the Company is the continuing corporation and which does not result in any
reclassification of, or change (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) in, Outstanding shares of Common Stock; or (c) any
sale or conveyance of all or substantially all of the property and assets of the
Company to any Person, then the Company, or such successor, purchasing or
transferee corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, sale or conveyance,
execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Note then Outstanding shall have the right to convert such Note
into the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
deliverable upon conversion of such Note immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such
supplemental indenture shall provide for adjustments of the Conversion Price
which shall be as nearly equivalent as may be practicable to the adjustments of
the Conversion Price provided for in this Article. If, in the case of any such
consolidation, merger, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
include shares of stock or other securities and property of a Person other than
the successor, purchasing or transferee corporation, as the case may be, in such
consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other Person and shall contain such additional
provisions to protect the interests of the Holders of the Notes as the Board of
Directors shall reasonably consider necessary by reason of the foregoing. The
provisions of this Section 614 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture pursuant to
this Section 614, the Company shall promptly file with the Trustee (x) an
Officers' Certificate briefly stating the reasons therefor, the kind or amount
of shares of stock or other securities or property (including cash) receivable
by Holders of the Notes upon the
25
conversion of their Notes after any such reclassification, change,
consolidation, merger, sale or conveyance, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with and
(y) an Opinion of Counsel that all conditions precedent have been complied with,
and shall promptly mail notice thereof to all Holders.
SECTION 615. Trustee's Disclaimer.
The Trustee shall have no duty to determine when an adjustment under this
Article should be made, how it should be made or what such adjustment should be,
but may accept as conclusive evidence of that fact or the correctness of any
such adjustment, and shall be protected in relying upon, an Officers'
Certificate including the Officers' Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 612. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Notes, and the Trustee shall not be responsible
for the Company's failure to comply with any provisions of this Article.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 614, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 614.
SECTION 616. Voluntary Decrease.
The Company may decrease the Conversion Price for any period of at least 20
days, upon at least 15 days notice, if the Board of Directors determines that
such decrease would be in the Company's best interests. Such determination by
the Board of Directors shall be conclusive.]
[ARTICLE SEVEN
PURCHASE OF NOTES AT OPTION OF THE HOLDER
SECTION 701. General.
The Company shall be required to purchase Notes in accordance with this
Article Seven.
On each Purchase Date, the Company shall repurchase, at the option of the
Holder, the Notes in respect of which such Holder has provided and not withdrawn
a Purchase Notice at the Purchase Price upon:
(1) delivery to the Paying Agent, by the Holder of a written notice of
purchase (a "Purchase Notice") at any time from the opening of business on the
date that is 20
26
Business Days prior to a Purchase Date until the close of business on the
Business Day immediately preceding such Purchase Date stating:
(A) if a Certificated Security has been issued, the certificate number
of the Note which the Holder shall deliver to be purchased or if a Certificated
Security has not been issued, such information as may be required by Applicable
Procedures;
(B) the portion of the principal amount of Notes to be purchased,
which must be $1,000 or an integral multiple of $1,000;
(C) that such Note shall be purchased as of the Purchase Date pursuant
to the terms and conditions specified in the Notes and in the Indenture as
supplemented by this Supplemental Indenture; and
(D) in the event that the Company elects, pursuant to Section 702
hereof, to pay the Purchase Price to be paid as of such Purchase Date, in whole
or in part, in Common Stock but such portion of the Purchase Price shall
ultimately be payable to such Holder entirely in cash because any of the
conditions to payment of the Purchase Price in Common Stock is not satisfied
prior to the close of business on such Purchase Date, as set forth in Section
704 hereof, whether such Holder elects (i) to withdraw such Purchase Notice as
to some or all of the Notes to which such Purchase Notice relates (stating the
principal amount and certificate numbers of the Notes as to which such
withdrawal shall relate), or (ii) to receive cash in respect of the entire
Purchase Price for all Notes (or portions thereof) to which such Purchase Price
relates; and
(2) delivery of such Notes to the Paying Agent at any time from the opening
of business on the date that is 20 Business Days prior to the Purchase Date
until the close of business on the Business Day immediately preceding such
Purchase Date (together with all necessary endorsements) at the offices of the
Paying Agent, such delivery being a condition to receipt by the Holder of the
Purchase Price therefor; provided, however, that such Purchase Price shall be so
paid pursuant to this Article only if the Notes so delivered to the Paying Agent
shall conform in all respects to the description thereof in the related Purchase
Notice.
If a Holder, in such Holder's Purchase Notice and in any written notice of
withdrawal delivered by such Holder pursuant to the terms of Section 709 hereof,
fails to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 701(1), such Holder shall be deemed to have elected to
receive cash in respect of the Purchase Price for all Notes subject to the
Purchase Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Article, a portion of a Note if the principal amount of such portion is $1,000
or an integral multiple of $1,000. Provisions of this Indenture that apply to
the purchase of all of a Note also apply to the purchase of such portion of such
Note.
27
Any purchase by the Company contemplated pursuant to the provisions of this
Article shall be consummated by the delivery of the consideration to be received
by the Holder (if any) promptly following the later of the Purchase Date and the
time of delivery of the Note.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 701 shall have
the right to withdraw such Purchase Notice at any time prior to the close of
business on the Business Day immediately preceding the Purchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with Section
709.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
SECTION 702. The Company's Right to Elect Manner of Payment of Purchase
Price.
The Purchase Price of Notes in respect of which a Purchase Notice pursuant
to Section 701 has been given, or a specified percentage thereof, shall be paid
by the Company, at the election of the Company, with cash or Common Stock or in
any combination of cash and Common Stock, subject to the conditions set forth in
Section 702 and 703 hereof. The Company shall specify, in the Company Notice
delivered pursuant to Section 705 hereof, whether the Company will purchase the
Notes for cash or Common Stock, or, if a combination thereof, the percentages of
the Purchase Price of Notes in respect of which it shall pay in cash and Common
Stock; provided, however, that the Company shall pay cash for fractional
interests in Common Stock. For purposes of determining the existence of
potential fractional interests, all Notes subject to purchase by the Company
held by a Holder shall be considered together (no matter how many separate
certificates are to be presented). Each Holder whose Notes are purchased
pursuant to this Article shall receive the same percentage of cash or Common
Stock in payment of the Purchase Price for such Notes, except (i) as provided in
Section 704 with regard to the payment of cash in lieu of fractional shares of
Common Stock and (ii) in the event that the Company is unable to purchase the
Notes of a Holder or Holders for Common Stock because any necessary
qualifications or registrations of the Common Stock under applicable state
securities laws cannot be obtained, the Company may purchase the Notes of such
Holder or Holders for cash. The Company may not change its election with respect
to the consideration (or components or percentages of components thereof) to be
paid once the Company has given its Company Notice to Holders except pursuant to
Section 704 in the event of a failure to satisfy, prior to the close of business
on the Purchase Date, any condition to the payment of the Purchase Price, in
whole or in part, in Common Stock.
At least three Business Days before the Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company;
28
(ii) the information required by Section 705;
(iii) if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in Common Stock, that the conditions to such manner of
payment set forth in Section 704 have been or shall be complied with; and
(iv) whether the Company desires the Trustee to give the Company Notice
required by Section 705.
SECTION 703. Purchase with Cash.
On each Purchase Date, at the option of the Company, the Purchase Price of
Notes in respect of which a Purchase Notice pursuant to Section 701 has been
given, or a specified percentage thereof, may be paid by the Company with cash
equal to the aggregate Purchase Price of such Notes.
SECTION 704. Payment by Issuance of Common Stock.
On each Purchase Date, at the option of the Company, the Purchase Price of
Notes in respect of which a Purchase Notice pursuant to Section 701 has been
given, or a specified percentage thereof, may be paid by the Company by the
issuance of a number of shares of Common Stock equal to the quotient obtained by
dividing (i) the amount of cash to which the Holders would have been entitled
had the Company elected to pay all or such specified percentage, as the case may
be, of the Purchase Price of such Notes in cash by (ii) 95% of the Market Price
of a share of Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock in payment of
the Purchase Price. Instead the Company will pay cash for the current market
value of the fractional share. The current market value of a fraction of a share
of Common Stock shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent with one half cent
being rounded upwards. It is understood that if a Holder elects to have more
than one Note purchased, the number of shares of Common Stock shall be based on
the aggregate amount of Notes to be purchased.
Upon determination of the actual number of shares of Common Stock issuable
in accordance with the provisions of this Section 704, the Company shall publish
such information in The Wall Street Journal or another daily newspaper of
national circulation.
The Company's right to exercise its election to purchase the Notes pursuant
to this Article through the issuance of Common Stock shall be conditioned upon:
(1) the Company not having given its Company Notice of an election to
pay entirely in cash and timely having given its Company Notice of an election
to
29
purchase all or a specified percentage of the Notes with Common Stock as
provided herein;
(2) the listing of shares of Common Stock on the principal United
States securities exchange on which the Common Stock is then listed;
(3) the registration of the shares of Common Stock to be issued in
respect of the payment of the Purchase Price under the Securities Act and the
Exchange Act, in each case, if required for the initial issuance thereof; and
(4) any necessary qualification or registration under applicable state
securities law or the availability of an exemption from such qualification and
registration.
If the foregoing conditions are not satisfied with respect to a Holder or
Holders prior to the close of business on the Purchase Date and the Company has
elected to purchase the Notes pursuant to this Article through the issuance of
Common Stock, the Company shall pay, without further notice, the entire Purchase
Price of the Notes of such Holder or Holders in cash.
The "Market Price" means the average of the Sale Prices of the Common Stock
for the twenty Trading Day period ending on the third Business Day (if the third
Business Day prior to the applicable Purchase Date is a Trading Day, or if not,
then on the last Trading Day prior to the third Business Day) prior to the
applicable Purchase Date appropriately adjusted to take into account the
occurrence, during the period commencing on the first of such Trading Days
during such five Trading Day period and ending on such Purchase Date, of any
event described in Section 609; subject, however, to the conditions set forth in
Sections 609(f) and 610.
The "Sale Price" of the Common Stock on any date means the closing per
share sale price (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 average ask prices) on such date as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is traded or, if the Common Stock is not listed on a United States
national or regional securities exchange, as reported by the National Quotation
Bureau Incorporated.
SECTION 705. Notice of Election.
The Company shall provide notice (a "Company Notice") on a date not less
than 20 Business Days prior to each Purchase Date (the "Company Notice Date") to
all Holders at their addresses shown in the register of the Security Registrar,
and to beneficial owners as required by applicable law, stating:
(1) whether the purchase price is payable in cash or Common Stock or in any
combination thereof, specifying the percentages of each;
30
(2) if the Company has elected to pay the Purchase Price in Common Stock:
(A) that each Holder shall receive Common Stock with a Market Price
equal to such specified percentage of the Purchase Price of the Notes held by
such Holder (except any cash amount to be paid in lieu of fractional shares);
(B) the method of calculating the Market Price of the Common Stock;
and
(C) that because the Market Price of Common Stock will be determined
prior to the Purchase Date, Holders will bear the market risk with respect to
the value of the Common Stock to be received from the date such Market Price is
determined to the Purchase Date.
In any case, each Company Notice shall include a form of Purchase Notice to
be completed by a Holder and shall state:
(A) the Purchase Price, the Conversion Rate and, to the extent known at the
time of such notice the amount of interest that will be accrued and payable with
respect to the Notes as of the Purchase Date;
(B) the name and address of the Paying Agent and the Conversion Agent;
(C) that Notes as to which a Purchase Notice has been given may be
converted pursuant to Article Six hereof only if the applicable Purchase Notice
has been withdrawn in accordance with the terms of this Supplemental Indenture;
(D) that Notes must be surrendered to the Paying Agent to collect payment
of the Purchase Price;
(E) that the Purchase Price for any Note as to which a Purchase Notice has
been given and not withdrawn shall be paid promptly following the later of the
Purchase Date and the time of surrender of such Note as described in (D);
(F) the procedures the Holder must follow to exercise purchase rights under
this Article and a brief description of those rights;
(G) a brief description of the conversion rights of the Notes; and
(H) the procedures for withdrawing a Purchase Notice (including, without
limitation, for a conditional withdrawal pursuant to the terms of Section 701 or
709).
If any of the Notes is in the form of a Global Note, then the Company shall
modify the Company Notice to the extent necessary to accord with the Applicable
Procedures.
31
At the Company's request, the Trustee shall give such Company Notice in the
Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
SECTION 706. Covenants of the Company.
All Common Stock delivered upon purchase of the Notes shall be newly issued
shares or treasury shares, shall be duly authorized, validly issued, fully paid
and nonassessable and shall be free from preemptive rights and free of any Lien
or adverse claim.
SECTION 707. Procedure upon Purchase.
As soon as practicable after the Purchase Date, the Company shall deliver
to each Holder entitled to receive Common Stock through the Paying Agent, a
certificate for the number of full shares of Common Stock issuable in payment of
the Purchase Price and cash in lieu of any fractional shares of Common Stock.
The Person in whose name the certificate for Common Stock is registered shall be
treated as a holder of record of Common Stock on the Business Day following the
Purchase Date. No payment or adjustment shall be made for dividends on the
Common Stock the record date for which occurred on or prior to the Purchase
Date.
SECTION 708. Taxes.
If a Holder of a Note is paid in Common Stock, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on such issue of Common
Stock. However, the Holder shall pay any such tax which is due because the
Holder requests the Common Stock to be issued in a name other than the Holder's
name. The Paying Agent may refuse to deliver the certificates representing the
shares of Common Stock being issued in a name other than the Holder's name until
the Paying Agent receives a sum sufficient to pay any tax which will be due
because the shares of Common Stock are to be issued in a name other than the
Holder's name.
SECTION 709. Effect of Purchase Notice.
Upon receipt by the Paying Agent of the Purchase Notice specified in
Section 701, the Holder of the Note in respect of which such Purchase Notice was
given shall (unless such Purchase Notice is withdrawn as specified in the
following two paragraphs) thereafter be entitled to receive solely the Purchase
Price with respect to such Note. Such Purchase Price shall be paid to such
Holder, subject to receipt of funds and/or Common Stock by the Paying Agent,
promptly following the later of (x) the Purchase Date with respect to such Note
(provided the conditions in Section 701 have been satisfied) and (y) the time of
delivery of such Note to the Paying Agent by the Holder thereof in the manner
required by Section 701. Notes in respect of which a Purchase Notice has been
given by the Holder thereof may not be converted pursuant to Article Six hereof
on or
32
after the date of the delivery of such Purchase Notice unless such Purchase
Notice has first been validly withdrawn as specified in the following two
paragraphs.
A Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Purchase Notice at any time prior to the close of business on the Business Day
immediately preceding the applicable Purchase Date specifying:
(1) if Certificated Securities have been issued, the certificate number of
the Notes in respect of which such notice of withdrawal is being submitted, or
if Certificated Securities have not been issued, such information as may be
required by the Applicable Procedures;
(2) the principal amount of the Notes, in integral multiples of $1,000,
being withdrawn; and
(3) the principal amount of such Notes that remains subject to the Purchase
Notice, if any.
A written notice of withdrawal of a Purchase Notice may be in the form set
forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
701(1)(D) or (ii) a conditional withdrawal containing the information set forth
in Section 701(l)(D) and the preceding paragraph and contained in a written
notice of withdrawal delivered to the Paying Agent as set forth in the preceding
paragraph.
There shall be no purchase of any Notes pursuant to this Article (other
than through the issuance of Common Stock in payment of the Purchase Price,
including cash in lieu of fractional shares) if there has occurred (prior to, on
or after, as the case may be, the giving, by the Holders of such Notes, of the
required Purchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Purchase Price with respect to such Notes). The
Paying Agent shall promptly return to the respective Holders thereof any Notes
(x) with respect to which a Purchase Notice has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of an Event of
Default (other than a default in the payment of the Purchase Price with respect
to such Notes) in which case, upon such return, the Purchase Notice with respect
thereto shall be deemed to have been withdrawn.
SECTION 710. Deposit of Purchase Price.
Prior to 11:00 a.m. (New York City time) on the Purchase Date, the Company
shall deposit with the Trustee or with the Paying Agent an amount of cash (in
immediately available funds if deposited on such Business Day) and/or Common
Stock, if permitted hereunder, sufficient to pay the aggregate Purchase Price of
all of the Notes or portions thereof which are to be purchased as of the
Purchase Date. The manner in which the deposit required by this Section 710 is
made by the Company shall be at the
33
option of the Company, provided, however, that such deposit shall be made in a
manner such that the Trustee or a Paying Agent shall have immediately available
funds on the Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money and/or
Common Stock sufficient to pay the Purchase Price of any Note for which a
Purchase Notice has been tendered and not withdrawn in accordance with this
Indenture then, immediately after such Purchase Date, such Note shall cease to
be Outstanding and the rights of the Holder in respect thereof shall terminate
(other than the right to receive the Purchase Price as aforesaid).
SECTION 711. Securities Purchased in Part.
Any Note which is to be purchased only in part shall be surrendered at the
office of the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company or the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge except for any taxes to be paid by the Holder in the event a Note
is registered under a new name, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the portion of the principal amount of the Note so
surrendered which is not purchased.
SECTION 712. Compliance with Securities Laws Upon Purchase of Securities.
In connection with any offer to purchase or purchase of Notes under this
Article (provided that such offer or purchase constitutes an "issuer tender
offer" for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e-4 under the Exchange Act,
(ii) file the related Schedule TO (or any successor schedule, form or report),
if required, under the Exchange Act and (iii) otherwise comply with all
applicable federal and state securities laws so as to permit the rights and
obligations under Article Seven to be exercised in the time and in the manner
specified in this Article.
SECTION 713. Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company any cash or
Common Stock that remain unclaimed for two years, subject to applicable
unclaimed property law, together with interest or dividends, if any, thereon
held by them for the payment of the Purchase Price, provided, however, that to
the extent that the aggregate amount of cash or Common Stock deposited by the
Company pursuant to Section 710 exceeds the aggregate Purchase Price of the
Notes or portions thereof which the Company is obligated to purchase as of the
Purchase Date, then promptly after the Business Day following the Purchase Date,
the Trustee shall return any such excess to the
34
Company together with interest or dividends, if any, thereon. Thereafter, any
Holder entitled to payment must look to the Company for payment as general
creditors, unless an applicable abandoned property law designates another
Person.]
[ARTICLE EIGHT
PURCHASE OF NOTES AT OPTION OF
THE HOLDER UPON FUNDAMENTAL CHANGE
SECTION 801. Right to Require Purchase.
(a) If a Fundamental Change occurs, Holders shall have the right, at their
option, to require the Company to Purchase all of such Holder's Notes not
previously called for redemption, or any portion of the principal amount
thereof, that is equal to $1,000 or an integral multiple of $1,000, on the
Fundamental Change Purchase Date.
A "Fundamental Change" shall be deemed to have occurred at such time as (a)
any Person, including its Affiliates and associates, other than Permitted
Holders, files a Schedule 13D or TO (or any successor schedule, form or report
under the Exchange Act) disclosing that such Person has become the Beneficial
Owner of 50% or more of the total voting power in the aggregate of all classes
the Company's Capital Stock then outstanding normally entitled to vote in
elections of the Board of Directors, (b) there shall be consummated any
consolidation or merger of the Company pursuant to which the Common Stock would
converted into cash, securities or other property, in each case other than a
consolidation or merger of the Company in which the holders of Common Stock
immediately prior to the consolidation or merger have, directly or indirectly,
at least a majority of the total voting power in the aggregate of all classes of
Capital Stock of the continuing or surviving corporation normally entitled to
vote in elections of directors immediately after the consolidation or merger or
(c) the Company shall sell, convey, transfer or lease all or substantially all
of its properties and assets to any Person other than a Permitted Holder.
The term "Beneficial Owner" shall be determined in accordance with Rules
13d-3 and 13d-5 promulgated by the Commission under the Exchange Act or any
successor provision thereto, except that a Person shall be deemed to have
"beneficial ownership" of all shares that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of time.
The term "Permitted Holders" shall mean [(a) the Company and its
Subsidiaries and employee benefit plans, (b) any "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act) that includes ;
provided that at all times (i) holds the position of director of the
Company, or another position of equal or greater responsibilities, and the
estates, executors and administrators, and parents and lineal descendants of
, and the estates, executors and administrators of any of such
parents and lineal descendants and (c) any corporation, partnership, limited
liability company, trust or other entity in which the trusts, individuals
35
or lineal descendents referred to in clause (b) in the aggregate have either a
direct or indirect beneficial interest or voting control of greater than 50%.]
(b) Within fifteen Business Days following any Fundamental Change, the
Company shall provide a notice to all Holders at their addresses shown in the
register of the Security Registrar, and to beneficial owners as required by
applicable law, and the Trustee offering to purchase the Notes on a certain date
(which date shall not be later than 35 Business Days from the date of such
notice) (the "Fundamental Change Purchase Date") specified in such notice and
such notice shall state:
(1) the events giving rise to the Fundamental Change;
(2) the date of such Fundamental Change;
(3) the date by which the Fundamental Change Purchase Notice pursuant
to this Section 801 must be given;
(4) the Fundamental Change Purchase Date;
(5) the Fundamental Change Purchase Price that will be accrued and
payable with respect to the Notes as of the Fundamental Change Purchase Date;
(6) briefly, the conversion rights of the Notes;
(7) the name and address of the Paying Agent and Conversion Agent;
(8) the Conversion Price and any adjustments thereto;
(9) that Notes as to which a Fundamental Change Purchase Notice has
been given may be converted into Common Stock pursuant to Article Six only to
the extent that the Fundamental Change Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(10) the procedures that the Holder must follow to exercise rights
under this Section 801;
(11) the procedures for withdrawing a Fundamental Change Purchase
Notice, including a form of notice of withdrawal; and
(12) that the Holder must satisfy the requirements set forth in the
Notes in order to convert the Notes.
If any of the Notes are in the form of a Global Note, then the Company
shall modify such notice to the extent required by the Applicable Procedures.
36
(c) A Holder may exercise its rights specified in subsection (a) of this
Section 801 upon delivery of a written notice (which shall be in substantially
the form included as an attachment to the Notes and which may be delivered by
letter, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Notes, may be delivered electronically
or by other means in accordance with the Depository's customary procedures) of
the exercise of such rights (a "Fundamental Change Purchase Notice") to any
Paying Agent for receipt by such Paying Agent no later than the close of
business on the fifth Business Day next preceding the Fundamental Change
Purchase Date.
The delivery of such Note to any Paying Agent (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to the
receipt by the Holder of the Fundamental Change Purchase Price.
The Company shall purchase from the Holder thereof, pursuant to this
Section 801, a portion of a Note if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Supplemental
Indenture that apply to the purchase of all of a Note pursuant to Sections 801
through 806 also apply to the purchase of such portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 801 shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Fundamental Change
Purchase Date and the time of delivery of the Note to the Paying Agent in
accordance with this Section 801.
Notwithstanding anything herein to the contrary, any Holder delivering to a
Paying Agent the Fundamental Change Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Fundamental Change Purchase
Notice in whole or as to a portion thereof that is a principal amount of $1,000
or an integral multiple thereof at any time prior to the close of business on
the Business Day next preceding the Fundamental Change Purchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with Section
802.
A Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Purchase Notice or written withdrawal thereof.
In the case of Global Notes, any Fundamental Change Purchase Notice may be
delivered or withdrawn and such Notes may be surrendered or delivered for
purchase in accordance with the Applicable Procedures.
(d) Anything herein to the contrary notwithstanding, the Company shall not
be required to effect a Fundamental Change Offer following a Fundamental Change
if a third party makes the Fundamental Change Offer in the manner, at the times
and otherwise in compliance with the requirements set forth in this Article and
purchases all of the Notes validly tendered and not withdrawn under such
Fundamental Change Offer.
37
SECTION 802. Effect of Fundamental Change Purchase Notice.
Upon receipt by any Paying Agent of the Fundamental Change Purchase Notice
specified in Section 801(c), the Holder of the Note in respect of which such
Fundamental Change Purchase Notice was given shall (unless such Fundamental
Change Purchase Notice is withdrawn as specified below) thereafter be entitled
to receive on the Fundamental Change Purchase Date the Fundamental Change
Purchase Price with respect to such Note together with interest accrued to such
Fundamental Change Purchase Date. Such Fundamental Change Purchase Price shall
be paid to such Holder promptly following the later of (a) the Fundamental
Change Purchase Date with respect to such Note (provided the conditions in
Section 801(c) have been satisfied) and (b) the time of delivery of such Note to
a Paying Agent by the Holder thereof in the manner required by Section 801(c).
Notes in respect of which a Fundamental Change Purchase Notice has been given by
the Holder thereof may not be converted into 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 the following paragraph.
A Fundamental Change Purchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Fundamental Change Purchase Notice at any time prior to the close of
business on the Business Day immediately preceding the Fundamental Change
Purchase Date specifying:
(1) if a Certificated Security has been issued, the certificate number of
the Notes in respect of which such notice of withdrawal is being submitted, or
if a Certificated Security has not been issued, such information as may be
required by Applicable Procedures;
(2) the principal amount, in integral multiples of $1,000, of the Notes
being withdrawn; and
(3) the principal amount of such Notes which remain subject to the
Fundamental Change Purchase Notice, if any.
SECTION 803. Deposit of Fundamental Change Purchase Price.
On the Fundamental Change Purchase Date, the Company shall, to the extent
lawful accept for payment all the Notes or portions thereof properly tendered
pursuant to the Fundamental Change Offer and deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers' Certificate,
stating the aggregate principal amount of Notes or portions thereof being
purchased.
On or before 11:00 a.m., New York City time, on the Fundamental Change
Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent
(other than the Company or an Affiliate of the Company) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to pay
the aggregate
38
Fundamental Change Purchase Price of all the Notes or portions thereof that are
to be purchased as of such Fundamental Change Purchase Date. The manner in which
the deposit required by this Section 803 is made by the Company shall be at the
option of the Company; provided, however, that such deposit shall be made in a
manner such that the Trustee or a Paying Agent shall have immediately available
funds on the Fundamental Change Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, funds
sufficient to pay the Fundamental Change Purchase Price of any Note for which a
Fundamental Change Purchase Notice has been tendered and not withdrawn in
accordance with this Supplemental Indenture then, on the Fundamental Change
Purchase Date such Note shall cease to be Outstanding and the rights of the
Holder in respect thereof shall terminate (other than the right to receive the
Fundamental Change Purchase Price). The Company shall publicly announce the
principal amount of Notes purchased as a result of such Fundamental Change on or
as soon as practicable after the Fundamental Change Purchase Date.
SECTION 804. Securities Purchased In Part.
Any Note that is to be purchased only in part shall be surrendered at the
office of a Paying Agent and promptly after the Fundamental Change Purchase Date
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge (other than amounts to be paid in
respect of applicable transfer taxes), a new Note or Notes, of such authorized
denomination or denominations in integral multiples of $1,000 as may be
requested by such Holder, in aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Note so surrendered
that is not purchased.
SECTION 805. Compliance With Securities Laws Upon Purchase of Securities.
In connection with any offer to purchase or purchase of Notes under this
Article (provided that such offer or purchase constitutes an "issuer tender
offer" for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 and any
other tender offer rules promulgated under the Exchange Act, (ii) file the
related Schedule TO (or any successor schedule, form or report), if required,
under the Exchange Act and (iii) otherwise comply with all applicable federal
and state securities laws so as to permit the rights and obligations under this
Article to be exercised in the time and in the manner specified in this Article.
SECTION 806. Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company any cash or
Common Stock that remains unclaimed for two years, subject to applicable
unclaimed property law, together with interest or dividends, if any, thereon
held by them for the payment of the Fundamental Change Purchase Price; provided,
however, that to the
39
extent that the aggregate amount of cash or Common Stock deposited by the
Company pursuant to Section 603 exceeds the aggregate Fundamental Change
Purchase Price of the Notes or portions thereof which the Company is obligated
to purchase as of the Fundamental Change Purchase Date, then on the Business Day
following the Purchase Date, the Trustee shall return any such excess to the
Company together with interest or dividends, if any, thereon. Thereafter, any
Holder entitled to payment must look to the Company for payment as general
creditors, unless an applicable abandoned property law designates another
Person.]
ARTICLE NINE
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall continue
in full force and effect in accordance with the provisions thereof and the
Original Indenture is in all respects hereby ratified and confirmed. This
Supplemental Indenture and all its provisions shall be deemed a part of the
Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the day and year first above written.
DTE ENERGY COMPANY
By: ____________________________________
Name:
Title:
40
ATTEST:
By: _________________________________
Name:
Title:
BNY MIDWEST TRUST COMPANY
By: ____________________________________
Name:
Title:
41
EXHIBIT A
FORM OF SENIOR NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
CUSIP NO.: _______________ $____________
NO. R-___
DTE ENERGY COMPANY
SERIES % SENIOR NOTES DUE
DTE ENERGY COMPANY, a corporation duly organized and existing under the laws of
the State of Michigan (herein referred to as the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ______________________________________________ ($_____________)
on ("Stated Maturity" with respect to the principal of this Note)
[, unless previously redeemed,] [and to pay interest at the rate of %
per annum on said principal sum from the date of issuance or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for until the principal of this Note becomes due and payable, and on any overdue
principal and premium and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum during such overdue period. Interest on this Note will be
payable [semiannually] [quarterly] in arrears on [, ,
] and of each year (each such date, an "Interest
Payment Date"), commencing .]
A-1
[If this Note is not to bear interest prior to Stated Maturity, insert] [The
principal of this Note shall not bear interest except in the case of a default
in payment of principal upon acceleration, upon redemption or at Stated Maturity
and in such case the overdue principal and any overdue premium shall bear
interest at the rate of [yield to maturity]% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal or premium
shall be payable on demand. Any such interest on any overdue principal or
premium that is not so paid on demand shall bear interest at the rate of [yield
to maturity] % per annum (to the extent that the payment of such interest shall
be legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]
[The amount of interest payable for any period shall be computed on the basis of
[twelve 30-day months and a 360-day year] [a 360-day year and the actual number
of days elapsed in such period] [the actual number of days in the year] and, for
any period shorter than a full [semiannual] [quarterly] interest period, will be
computed on the basis of the actual number of days elapsed in such period. In
the event that any Interest Payment Date, redemption date or other date of
Maturity of the Notes is not a Business Day, then payment of the amount payable
on such date will be made on the next succeeding day which is a Business Day
[(and without any interest or other payment in respect of any such delay),]
[except that, if such Business Day is in the next succeeding calendar [year]
[month], such payment shall be made on the immediately preceding Business Day
[without reduction in the amount due to such early payment], in each case with
the same force and effect as if made on such date.] A "Business Day" shall mean
each day other than a Saturday or a Sunday or a day on which commercial banks in
The City of New York are authorized or obligated by or pursuant to law or
executive order to be closed. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date with respect
to this Note will, as provided in the Indenture (as defined herein), be paid to
the person in whose name this Note (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
relevant record date for such interest installment, which shall be the
[fifteenth calendar day (whether or not a Business Day)] prior to the relevant
Interest Payment Date (the "Regular Record Date"). Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holders on such Regular Record Date, and may either be paid to
the person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Notes not less than ten days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of [,
and premium, if any,] and the interest on this Note shall be payable at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in any coin or currency of
A-2
the United States of America which at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
Holder at the close of business on the Regular Record Date at such address as
shall appear in the Security Register.] Notwithstanding anything else contained
herein, if this Note is a Global Note and is held in book-entry form through the
facilities of the Depositary, payments on this Note will be made to the
Depositary or its nominee in accordance with arrangements then in effect between
the Trustee and the Depositary.
This Note is one of a duly authorized series of Securities of the Company,
designated as the " Series % Senior Notes due " (the
"Notes"), initially limited to an aggregate principal amount of $
(except for Notes authenticated and delivered upon transfer of, or in exchange
for, or in lieu of other Notes, and except as further provided in the
Indenture), all issued or to be issued under and pursuant to an Amended and
Restated Indenture, dated as of April 9, 2001, as supplemented through and
including the Supplemental Indenture dated as of , with respect
to the Notes (the "Supplemental Indenture"), as further amended, supplemented or
modified from time to time (the "Indenture"), duly executed and delivered
between the Company and BNY Midwest Trust Company, an Illinois trust company, as
Trustee (herein referred to as the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the registered Holders
of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
[[Except as provided below,] This Note is not subject to repayment at the option
of the Holder hereof.] [[Except as provided below,] [T][t]his Note is not
redeemable by the Company prior to maturity and is not subject to any sinking
fund.]
This Note will be redeemable at the option of the Company, in whole at any time
or in part from time to time (any such date of optional redemption, an "Optional
Redemption Date," which shall be a "Redemption Date" for purposes of the
Indenture), at an optional redemption price (which shall be a "Redemption Price"
for purposes of the Indenture) equal to [100% of the principal amount redeemed
plus the accrued and unpaid interest thereon to the date fixed for redemption]
[the greater of (i) 100% of the principal amount of this Note to be redeemed and
(ii) the sum of the present values of the principal amount of this Note to be
redeemed and the remaining scheduled payments of interest on the principal
amount of this Note to be redeemed (exclusive of interest accrued to the related
Optional Redemption Date) until Stated Maturity, in each case discounted from
their respective scheduled payment dates to such Optional Redemption Date on a
semiannual basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate (as defined below) plus basis points, plus in
either case, accrued interest thereon to the date of redemption.]
Notwithstanding the foregoing, installments of interest on this Note that are
due and payable on Interest Payment Dates falling on or prior to a Redemption
Date will be
A-3
payable on the Interest Payment Date to the registered Holders as of the close
of business on the relevant Record Date.
["Adjusted Treasury Rate" means, with respect to any Optional Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated on the third Business Day preceding such
Optional Redemption Date, using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Optional Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security determined
by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of this Note that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity with the remaining term of this
Note.
"Comparable Treasury Price" means, with respect to any Optional Redemption Date,
(i) the average of the Reference Treasury Dealer Quotations for such Optional
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (ii) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such quotations, or
(iii) if only one Reference Treasury Dealer Quotation is received, such
quotation.
"Reference Treasury Dealer" means each of: (i) ,
and (or their respective affiliates
which are Primary Treasury Dealers), and their respective successors; provided,
however, that if any of the foregoing cease to be a primary U.S. Government
securities dealer in the United States (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer(s) selected by the Trustee after consultation with
the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any Optional Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Optional Redemption Date.]
Notice of any optional redemption will be mailed at least 30 days but not more
than 60 days before the Optional Redemption Date to the Holder hereof at its
registered address.
Unless the Company defaults in payment of the applicable Redemption Price, on
and after the applicable Redemption Date interest will cease to accrue on the
principal amount of this Note called for redemption.
If money sufficient to pay the applicable Redemption Price with respect to the
principal amount of and accrued interest on the principal amount of this Note to
be redeemed on the applicable Redemption Date is deposited with the Trustee or
Paying Agent on or
A-4
before the related Redemption Date and certain other conditions are satisfied,
then on or after such Redemption Date, interest will cease to accrue on the
principal amount of this Note called for redemption. If the Notes are only
partially redeemed by the Company, the Trustee shall select which Notes are to
be redeemed by lot or in a manner it deems fair and appropriate in accordance
with the terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes of
this series for the unredeemed portion hereof will be issued in the name of the
registered Holder hereof upon the cancellation hereof.]
[The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [not less than] [("mandatory sinking fund") and,
at the option of the Company, not more than ] aggregate
principal amount of Notes of this series. [Notes of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [mandatory] sinking fund payments otherwise
required to be made in the order in which they become due.]]
[If a Fundamental Change occurs, Holders of Notes shall have the right, at their
option, to require the Company to purchase all of such Holder's Notes not
previously called for redemption, or any portion of the principal amount
thereof, that is equal to $1,000 or an integral multiple of $1,000, pursuant to
a Fundamental Change Offer. The Company shall pay the Fundamental Change
Purchase Price in cash equal to 100% of the aggregate principal amount of the
Notes to be purchased.
Within 15 Business Days following any Fundamental Change, the Company shall
provide notice in accordance with the provisions of Section 801(b) of the
Supplemental Indenture.
To exercise its purchase right, Holders of Notes must deliver the form entitled
"Option of Holder to Elect Purchase," in the form attached hereto, so as to be
received by the Paying Agent no later than the close of business on the fifth
Business Day prior to the Fundamental Change Purchase Date. Any Purchase Notice
may be withdrawn by the Holder by a written notice provided in accordance with
the provisions of Section 802 of the Supplemental Indenture.
On the Fundamental Change Purchase Date, the Company shall, to the extent
lawful, accept for payment all the Notes or portions thereof properly tendered
pursuant to the Fundamental Change Offer, deposit with the Paying Agent an
amount equal to the Fundamental Change Purchase Price in respect of all the
Notes or portions thereof so tendered, and deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers' Certificate,
stating the aggregate principal amount of Notes or portions thereof being
purchased.
The Company shall not be required to make a Fundamental Change Offer following a
Fundamental Change if a third party makes the Fundamental Change Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in the Indenture
A-5
applicable to a Fundamental Change Offer made by the Company and purchases all
of the Notes validly tendered and not withdrawn under such Fundamental Change
Offer.
If cash sufficient to pay the Fundamental Change Purchase Price of all Notes or
portions thereof to be purchased as of the Fundamental Change Purchase Date is
deposited with the Paying Agent by 11:00 a.m. on the Fundamental Change Purchase
Date, all interest shall cease to accrue on such Notes (or portions thereof)
immediately after such Fundamental Change Purchase Date, and the Holder hereof
shall have no other rights as such (other than the right to receive the
Fundamental Change Purchase Price upon surrender of such Note).]
[The Holder of any Note shall have the right, exercisable at any time after the
Issue Date of the Notes and before the close of business on the Business Day
immediately preceding the date of Stated Maturity, to convert the principal
amount of the Notes (or any portion of it that is an integral multiple of
$1,000) into shares of Common Stock at the Conversion Price, subject to
adjustment as described below. The foregoing notwithstanding, if a Note is
called for redemption, such conversion right shall terminate at the close of
business on the Business Day immediately preceding the Redemption Date, unless
the Company defaults in making the payment due on the Redemption Date, in which
case the conversion right shall terminate at the close of business on the date
such default is cured and such payment is made.
A Note in respect of which a Holder has delivered a Purchase Notice or a
Fundamental Change Purchase Notice exercising the option of such Holder to
require the Company to purchase such Note may be converted only if such notice
of exercise is withdrawn in accordance with the terms of the Indenture. The
initial Conversion Price is $ per share of Common Stock, subject to
adjustment upon the occurrence of certain events described in the Indenture. The
shares of Common Stock shall be deliverable through the Conversion Agent to
Holders surrendering Notes as promptly as practicable but in any event no later
than the fifth Business Day following the Conversion Date. The Company shall
deliver cash or a check in lieu of any fractional share of Common Stock.
Except as provided in the next succeeding paragraph, on conversion of a Holder's
Notes, such Holder shall not receive any cash payment of interest. The Company's
delivery to a Holder of the full number of shares of Common Stock into which a
Note is convertible shall be deemed to satisfy the Company's obligation to pay
the principal amount at maturity of the Note and to satisfy the Company's
obligation to pay accrued interest attributable to the period from the most
recent Interest Payment Date through the Conversion Date.
If any Notes are converted during the period after any Regular Record Date but
before the next Interest Payment Date, interest on such Notes shall be paid on
the next Interest Payment Date, notwithstanding such conversion, to the Holder
of record on the Regular Record Date. Any Notes that are, however, delivered to
the Company for conversion after any Regular Record Date but before the next
Interest Payment Date must, except as described in the next sentence, be
accompanied by a payment equal to the interest
A-6
payable on such Interest Payment Date on the principal amount of Notes being
converted. The Company shall not require the payment to it described in the
preceding sentence if, during the period between a Regular Record Date and the
Interest Payment Date to which such Regular Record Date relates, a conversion
occurs prior to a Redemption Date falling during such period. No fractional
shares will be issued upon conversion, but a cash adjustment shall be made for
any fractional shares.
To convert a Note, a Holder must (a) complete and manually sign the form
entitled "Conversion Notice," in the form attached hereto, and deliver such
notice to the Conversion Agent, (b) surrender the Note to the Conversion Agent,
(c) furnish appropriate endorsements and transfer documents (including any
certification that may be required under applicable law) if required by the
Conversion Agent and (d) pay any transfer or similar tax, if required.]
[Subject to the terms and conditions of the Indenture, the Company shall become
obligated to purchase, at the option of the Holder, the Notes held by such
Holder on any in the years , ,
and at a Purchase Price equal to 100% of the principal amount thereof
plus accrued and unpaid interest to, but excluding, the Purchase Date, upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 20
Business Days prior to such Purchase Date until the close of business on the
Business Day immediately preceding such Purchase Date and upon delivery of the
Notes to the Paying Agent by the Holder as set forth in the Indenture.
The Purchase Price may be paid, at the option of the Company, in cash or by the
issuance of Common Stock (as provided in the Indenture), or in any combination
thereof.
Holders have the right to withdraw any Purchase Notice by delivering to the
Paying Agent a written notice of withdrawal prior to the close of business on
the Business Day immediately preceding the Purchase Date in accordance with the
provisions of Section 709 of the Supplemental Indenture.
If cash or securities sufficient to pay the Purchase Price of all Notes or
portions thereof to be purchased as of the Purchase Date is deposited with the
Paying Agent by 11:00 a.m. on the Purchase Date, all interest shall cease to
accrue on such Notes (or portions thereof) immediately after such Purchase Date,
and the Holder thereof shall have no other rights as such (other than the right
to receive the Purchase Price upon surrender of such Note).]
[In case an Event of Default, as defined in the Indenture, shall have occurred
and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.]
[Insert for Original Issue Discount Notes] [If an Event of Default with respect
to this Note shall occur and be continuing, an amount of principal of this Note
(the "Acceleration Amount") may be declared due and payable in the manner and
with the
A-7
effect provided in the Indenture. In case of a declaration of acceleration on or
before and on in any year, the
Acceleration Amount per principal amount at Stated
Maturity of this Note shall be equal to the amount set forth in respect of such
date below:
Acceleration Amount
Date of Acceleration per principal amount of Stated Maturity
- -------------------- ---------------------------------------
and in case of a declaration of acceleration on any other date, the Acceleration
Amount shall be equal to the Acceleration Amount as of the next preceding date
set forth in the table above, plus accrued original issue discount (computed in
accordance with the method used for calculating the amount of original issue
discount that accrues for U.S. Federal income tax purposes) from such next
preceding date to the date of declaration at the yield to maturity. For the
purpose of this computation the yield to maturity is %. Upon payment (i)
of the Acceleration Amount so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on this Note shall terminate.]
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority of the aggregate principal amount of all Notes issued under the
Indenture at the time outstanding and affected thereby; provided, however, that
no such amendment shall without the consent of the Holder of each Note so
affected, among other things (i) change the stated maturity of the principal of,
or any installment of principal of or interest on any Notes of any series, or
reduce the principal amount thereof, or reduce the rate of interest thereon, or
reduce any premium payable upon the redemption thereof or (ii) reduce the
percentage of Notes, the Holders of which are required to consent to any
amendment or waiver or for certain other matters as set forth in the Indenture.
The Indenture also contains provisions permitting (i) the registered Holders of
at least 66 2/3% in aggregate principal amount of the Securities of each series
at the time outstanding affected thereby, on behalf of the registered Holders of
the Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) the registered Holders of not less than a
majority in aggregate principal amount of the Securities of any series at the
time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or
A-8
waiver by the registered Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such registered Holder and upon
all future registered Holders and owners of this Note and of any Note issued in
exchange hereof or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of [and premium, if any,] and interest
on this Note at the time and place and at the rate and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of and any interest on
this Note are payable or at such other offices or agencies as the Company may
designate, duly endorsed by or accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered Holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the Company,
the Trustee, any paying agent and any Security Registrar may deem and treat the
registered Holder hereof as the absolute owner hereof (whether or not this Note
shall be overdue and notwithstanding any notice of ownership or writing hereon
made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest due hereon and for
all other purposes, and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
The Notes of this series are issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof. This
Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. Notes of this series so issued
are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes of this series are exchangeable for
a like aggregate principal amount of Notes of this series of a different
authorized denomination, as requested by the registered Holder surrendering the
same.
As set forth in, and subject to the provisions of, the Indenture, no registered
owner of any Note will have any right to institute any proceeding with respect
to the Indenture or for
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any remedy thereunder, unless (i) such registered owner shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to the Notes of this series, (ii) the registered owners of not less than
25% in principal amount of the outstanding Notes of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, (iii) the Trustee shall have failed to institute
such proceeding within 60 days and (iv) the Trustee shall not have received from
the registered owners of a majority in principal amount of the outstanding Notes
of this series a direction inconsistent with such request within such 60-day
period; provided, however, that such limitations do not apply to a suit
instituted by the registered owner hereof for the enforcement of payment of the
principal of or premium, if any, or any interest on this Note on or after the
respective due dates expressed herein.
Unless the Certificate of Authentication hereon has been executed by the Trustee
or a duly appointed Authentication Agent referred to herein, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
The Indenture and this Note shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
DTE ENERGY COMPANY
By: ____________________________________
Name:
Title:
ATTEST:
By: _________________________________
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within
mentioned Indenture.
BNY MIDWEST TRUST COMPANY
as Trustee
By: ____________________________________
Authorized Signatory
Date:
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
_______________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated: ______________________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
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[CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the box:
To convert only part of this Note, state the principal amount to be
converted (must be $1,000 or a multiple of $1,000): $__________.
If you want the stock certificate made out in another person's name, fill
in the form below:
_________________________________________________
(Insert other person's soc. sec. or tax I.D. no.)
________________________________________________________
(Print or type other person's name, address and zip code)
Your Signature: ________________________ Date: _________________________________
(Sign exactly as your name appears on the other side of this Note
*Signature guaranteed by: ________________________________
By: ________________________________]
- ----------
* The Signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
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[OPTION OF HOLDER TO ELECT PURCHASE ON FUNDAMENTAL CHANGE
If you want to elect to have this Note purchased, in whole or in part, by
the Company pursuant to Section 801 of the Supplemental Indenture, check the
following box:
If you want to have only part of this Note purchased by the Company
pursuant to Section 801 of the Supplemental Indenture, state the principal
amount you want to be purchased (must be $1,000 or a multiple of $1,000):
$___________.
**Signature guaranteed by: ________________________________
By: ________________________________]
- ----------
** The Signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty acceptable to the Trustee.
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