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EXHIBIT 4
MCN ENERGY GROUP INC.
SECOND AMENDMENT TO RIGHTS AGREEMENT
(July 23, 1997)
This Amendment (the "Amendment"), dated this 23rd day of July 1997,
amends the Rights Agreement (the "Rights Agreement") by and between MCN Energy
Group Inc., a Michigan corporation (formerly MCN Corporation) (the "Company"),
and First Chicago Trust Company of New York (the "Rights Agent"), as successor
to National Bank of Detroit. All terms not otherwise defined herein shall have
the meaning given such terms in the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that
it is in the best interest of the Company and its stockholders to effect
certain amendments to the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement the Company
may, subject to certain limitations, amend the Rights Agreement without the
approval of any holders of Rights Certificates to make any provisions with
respect to the Rights which the Company deems necessary or desirable.
NOW, THEREFORE, upon all of the terms and conditions set forth
hereinafter, the Company and the Rights Agent agree as follows:
1. Amendment.
(a) Subsection (a) of Section 1 of the Rights Agreement is hereby
amended to add the following sentence to the end of the definition of
"Acquiring Person":
"Notwithstanding the foregoing, if the Board of Directors
of the Company determines in good faith that a Person who
would otherwise be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph
(a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an
"Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall
not be deemed to be an "Acquiring Person" for any purpose
of this Agreement."
(b) Subclause (i) of Section 7(a) of the Rights Agreement is hereby
amended to change the Final Expiration Date (as defined therein) from January
11, 2000 to July 23, 2007 by deleting the reference to "January 11, 2000" in
such subclause (i) and replacing it with "July 23, 2007".
(c) Section 7(b) of the Rights Agreement is hereby amended to read
in its entirety as follows:
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"The Purchase Price for each one one-hundredth of a Preferred Share purchasable
pursuant to the exercise of a Right shall initially be $300, and shall be
subject to adjustment from time to time as provided in Section 11 or 13 hereof
and shall be payable in lawful money of the United States of America in
accordance with paragraph (c) below."
(d) Subclause (iii) of Section 11(a) is hereby amended to read in
its entirety as follows:
"In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in
accordance with the foregoing subclause (ii), the Company
shall take all such action as may be necessary to
authorize additional Common Shares for issuance upon
exercise of the Rights. In the event the Company shall,
after good faith effort, be unable to take all such
action as may be necessary to authorize such additional
Common Shares, the Company shall substitute, for each
Common Share that would otherwise be issuable upon
exercise of a Right, a number of Preferred Shares or
fraction thereof such that the current per share market
price of one Preferred Share multiplied by such number or
fraction is equal to the current per share market price
of one Common Share as of the date of issuance of such
Preferred Shares or fraction thereof."
(e) The first sentence of Section 13 of the Rights Agreement is
hereby amended by adding the words "at any time after a Person becomes an
Acquiring Person," immediately following the words "directly or indirectly,"
such that Section 13 shall read in its entirety, as follows:
Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, at
any time after a Person has become an Acquiring Person,
(a) the Company shall consolidate with, or merge with and
into, any other Person, (b) any Person shall consolidate
with the Company, or merge with and into the Company and
the Company shall be the continuing or surviving
corporation of such merger and, in connection with such
merger, all or part of the Common Shares shall be changed
into or exchanged for stock or other securities of any
other Person (or the Company) or cash or any other
property, or (c) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer), in one or more transactions,
assets or earning power aggregating 50% or more of the
assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person other
than the Company or one or more of its wholly-owned
Subsidiaries, then, and in each such case, proper
provision shall be made so that (i) each holder of a
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Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise
thereof at a price equal to the then current Purchase
Price multiplied by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu
of Preferred Shares, such number of Common Shares of such
other Person (including the Company as successor thereto
or as the surviving corporation) as shall equal the
result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable and
dividing that product by (B) 50% of the then current per
share market price of the Common Shares of such other
Person (determined pursuant to Section 11(d) hereof) on
the date of consummation of such consolidation, merger,
sale or transfer; (ii) the issuer of such Common Shares
shall thereafter be liable for, and shall assume, by
virtue of such consolidation, merger, sale or transfer,
all the obligations and duties of the Company pursuant to
this Agreement; (iii) the term "Company" shall thereafter
be deemed to refer to such issuer; and (iv) such issuer
shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares
in accordance with Section 9 hereof) in connection with
such consummation as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to the Common
Shares thereafter deliverable upon the exercise of the
Rights. The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior
thereto the Company and such issuer shall have executed
and delivered to the Rights Agent a supplemental
agreement so providing. The Company shall not enter into
any transaction of the kind referred to in this Section
13 if at the time of such transaction there are any
rights, warrants, instruments or securities outstanding
or any agreements or arrangements which, as a result of
the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be
afforded by the Rights. The provisions of this Section
13 shall similarly apply to successive mergers or
consolidations or sales or other transfers.
(f) The Form of Right Certificate, set forth as Exhibit B to the
Rights Agreement, shall be amended by deleting from the front side thereof the
first sentence of the legend appearing thereon and replacing such first
sentence in its entirety with the following:
NOT EXERCISABLE AFTER JULY 23, 2007 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS.
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(g) The Form of Right Certificate, set forth as Exhibit B to the
Rights Agreement, shall be amended as follows:
(i) by deleting from the front side thereof the words "MCN
CORPORATION" which follow the words "Right Certificate" and replacing such
words with the words "MCN ENERGY GROUP INC."; and
(ii) by deleting the first sentence of the first paragraph
following the words "MCN ENERGY GROUP INC." and replacing such sentence in
its entirety as follows:
This certifies that _________, or registered assigns, is
the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of
December 20, 1989, as amended as of July 23, 1997, between MCN
Energy Group Inc., a Michigan corporation (the "Company"), and
First Chicago Trust Company of New York (the "Rights Agent"), to
purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior
to 5:00 P.M., Detroit time, on July 23, 2007, at the principal
office of the Rights Agent or at its office or agency in New
York, New York or at the office of its successor as Rights
Agent, one one-hundredth of a fully paid non-assessable share of
Junior Participating Preferred Stock, Series A, without par
value (the "Preferred Shares") of the Company, at a purchase
price of $300 per one one-hundredth of a Preferred Share (the
"Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed.
(h) The Summary of Rights to Purchase Preferred Shares, set forth
as Exhibit C to the Rights Agreement, shall be amended by deleting from the
second sentence of the first paragraph thereof the word "$70" and
replacing it with the word "$300".
(i) The Summary of Rights to Purchase Preferred Shares, set forth
as Exhibit C to the Rights Agreement, shall be amended by deleting from the
fourth paragraph thereof the words "January 11, 2000" and replacing
them in their entirety with the words "July 23, 2007".
(j) The Summary of Rights to Purchase Preferred Shares, set
forth as Exhibit C to the Rights Agreement, shall be amended by deleting
in its entirety the fifteenth paragraph thereof and replacing such paragraph
with the following:
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form
8-A dated December 28, 1989, and a copy of this Amendment will be filed
with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A/A dated July 28, 1997. A copy of the
Rights Agreement, as amended, is available free of charge from the
Company. This summary description of the Rights does not
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purport to be complete and is qualified in its entirety by reference to
the Rights Agreement, as amended, which is hereby incorporated herein by
reference.
2. Miscellaneous.
(a) Choice of Law. This Amendment shall be deemed to be a contract
made under the laws of the State of Michigan and for all purposes shall be
governed and construed in accordance with the laws of such State applicable
to contracts to be made and performed entirely within such State.
(b) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(c) Severability. If any term or provision of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms and provisions of this
Amendment shall in no way be affected, impaired or invalidated.
(d) Existing Terms. The existing terms and conditions of the
Rights Agreement shall remain in full force and effect except as such terms
and conditions are specifically amended or conflict with the terms of this
Amendment.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered by its duly authorized officer on the
day and year first above written.
The Company: Rights Agent:
MCN ENERGY GROUP INC. FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ Daniel L. Schiffer By: /s/ Craig Broomfield
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Its:Senior Vice President, Its: Assistant Vice President
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General Counsel and Secretary
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