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EXHIBIT 4(f)
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FIRST SUPPLEMENTAL INDENTURE
between
CMS ENERGY CORPORATION
and
THE BANK OF NEW YORK
Dated as of June __, 1997
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.................................................................... 4
SECTION 1.1. Definition of Terms........................................................ 4
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ARTICLE II. GENERAL TERMS AND CONDITIONS OF THE DEBENTURES...................................... 7
SECTION 2.1. Designation and Principal Amount........................................... 7
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SECTION 2.2. Maturity................................................................... 7
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SECTION 2.3. Form and Payment........................................................... 7
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SECTION 2.4. Global Debenture........................................................... 8
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SECTION 2.5. Interest................................................................... 9
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ARTICLE III. REDEMPTION OR EXCHANGE OF DEBENTURES............................................... 9
SECTION 3.1 Election to Redeem; Notice to Trustee...................................... 9
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SECTION 3.2 Selection of Debentures to Be Redeemed..................................... 10
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SECTION 3.3 Notice of Redemption....................................................... 10
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SECTION 3.4 Deposit of Redemption Price................................................ 11
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SECTION 3.5 Debentures Payable on Redemption Date...................................... 11
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SECTION 3.6 Debentures Redeemed in Part................................................ 11
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SECTION 3.7 Mandatory Redemption....................................................... 11
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SECTION 3.8 Optional Redemption........................................................ 12
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SECTION 3.9 Exchange of Trust Securities for Debentures................................ 12
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ARTICLE IV. EXTENSION OF INTEREST PAYMENT PERIOD................................................ 13
SECTION 4.1. Deferrals of Interest Payment Dates........................................ 13
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SECTION 4.2. Notice of Extension........................................................ 13
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ARTICLE V. EXPENSES............................................................................. 14
SECTION 5.1. Payment of Expenses........................................................ 14
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ARTICLE VI
CONVERSION OF DEBENTURES..................................................................... 14
SECTION 6.1 Conversion Rights.......................................................... 14
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SECTION 6.2 Expiration of Conversion Rights............................................ 15
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SECTION 6.3 Conversion Price Adjustments............................................... 15
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SECTION 6.4 Fundamental Change......................................................... 18
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SECTION 6.5 Prior Notice of Certain Events............................................. 15
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ARTICLE VII.
SUBORDINATION............................................................................... 19
SECTION 7.1. Agreement to Subordinate................................................... 19
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ARTICLE VIII.
COVENANT TO LIST ON EXCHANGE................................................................ 20
SECTION 8.1. Listing on an Exchange..................................................... 20
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ARTICLE IX.
FORM OF DEBENTURES.......................................................................... 20
SECTION 9.1. Form of Debenture.......................................................... 20
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SECTION 9.2. Form of Assignment......................................................... 27
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ARTICLE X.
ORIGINAL ISSUE OF DEBENTURES................................................................. 27
SECTION 10.1. Original Issue of Debentures...................................................... 27
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ARTICLE XI.
MISCELLANEOUS................................................................................ 28
SECTION 11.1. Ratification of Indenture......................................................... 28
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SECTION 11.2. Trustee Not Responsible for Recitals.............................................. 28
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SECTION 11.3. Governing Law..................................................................... 28
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SECTION 11.4. Separability...................................................................... 28
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SECTION 11.5. Counterparts...................................................................... 28
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FIRST SUPPLEMENTAL INDENTURE, dated as of June __, ▇▇▇▇, (▇▇▇ "▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇"), between CMS Energy Corporation, a Michigan
Corporation (the "Issuer"), and The Bank of New York, as trustee (the
"Trustee") under the Indenture dated as of June __, 1997 between the Issuer and
the Trustee (the "Indenture").
WHEREAS, the Issuer executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Issuer's Securities to be
issued from time to time in one or more series as might be determined by the
Issuer under the Indenture, in an unlimited aggregate principal amount which
may be authenticated and delivered as provided in the Indenture;
WHEREAS, Section 2.3 of the Indenture permits the terms of any
series of Securities to be established in an indenture supplemental to the
Indenture;
WHEREAS, Section 8.1(e) of the Indenture provides that a
supplemental indenture may be entered into by the Issuer and the Trustee
without the consent of any Holders of the Securities to establish the form and
terms of the Securities of any series.
WHEREAS, pursuant to the terms of the Indenture, the Issuer desires
to provide for the establishment of a new series of its Securities to be known
as its ___% Convertible Subordinated Debentures due 2027 (the "Debentures"),
the form and substance of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this First
Supplemental Indenture;
WHEREAS, CMS Energy Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the public $150,000,000 million aggregate
liquidation amount of its ____% Convertible Quarterly Income Preferred
Securities (the "Preferred Securities"), representing undivided beneficial
interests 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 Issuer of $4,500,000 aggregate liquidation amount of its ___%
Convertible Quarterly Income Common Securities, in $154,500,000 aggregate
principal amount of the Debentures; and
WHEREAS, the Issuer has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Debentures, when executed by the Issuer and
authenticated and delivered by the Trustee, the valid obligations of the
Issuer, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Issuer covenants and agrees with
the Trustee as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
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(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Trust Agreement: (i) Clearing Agency; (ii) Delaware Trustee; (iii) Preferred
Security Certificate; (iv) Property Trustee; (v) Regular Trustees; (vi) Special
Event; (vii) Tax Event; (viii) Underwriting Agreement; (ix) Investment Company
Event; (x) Depositary; and (xi) Distribution;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" means the interest, if any, that shall accrue
on any interest on the Debentures that is in arrears for more than one interest
payment period or not paid during any Extension Period, which in either case
shall accrue at the stated rate per annum specified or determined as specified
in such Debenture and compounded quarterly.
"Additional Sums" has the meaning specified in Section 2.5(c).
"Additional Taxes" means the sum of any additional taxes, duties and
other governmental charges to which the Trust has become subject from time to
time as a result of a Tax Event.
"Applicable Price" means (i) in the case of a Non-Stock Fundamental
Change in which the holders of the Common Stock receive only cash, the amount
of cash received by the holder of one share of Common Stock and (ii) in the
event of any other Non-Stock Fundamental Change or any Common Stock Fundamental
Change, the average of the Closing Prices for the Common Stock during the ten
trading days prior to and including the record date for the determination of
the holders of Common Stock entitled to receive such securities, cash, or other
property in connection with such Non-Stock Fundamental Change or Common Stock
Fundamental Change or, if there is no such record date, the date upon which the
holders of the Common Stock shall have the right to receive such securities,
cash, or other property, in each case as adjusted in good faith by the Issuer
to appropriately reflect any of the events referred to in Section 6.3.
"Closing Price" means on any day the reported last sale price on
such day or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices in each case on the NYSE Consolidated
Transactions Tape or, if the stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which such stock is
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices
as furnished by any NYSE member firm, selected by the Trustee for that purpose
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"Common Stock Fundamental Change" means any Fundamental Change in
which more than 50% of the value (as determined in good faith by the Board of
Directors) of the consideration received by holders of Common Stock consists of
common stock that for each of the ten consecutive trading days prior to the
record date for the determination of the holders of Common Stock entitled to
receive such common stock or, if there is no such record date, the date on
which the holders of the Common Stock shall have the right to receive such
Common Stock, has been admitted for listing or admitted for listing subject to
notice of issuance on a national securities exchange or quoted on the Nasdaq
National Market; provided, however, that a Fundamental Change shall not be a
Common Stock Fundamental Change unless either (i) the Company continues to
exist after the occurrence of such Fundamental Change and the outstanding
Preferred Securities continue to exist as outstanding Preferred Securities or
(ii) not later than the occurrence of such Fundamental Change, the outstanding
Preferred Securities are converted into or exchanged for shares of convertible
preferred stock of an entity succeeding to the business of the Company or a
subsidiary thereof, which convertible preferred stock has powers, preferences,
and relative, participating, optional, or other rights, and qualifications,
limitations, and restrictions, substantially similar to those of the Preferred
Securities.
"Conversion Expiration Date" means, subject to Section 6.2(c) of the
Indenture, the date selected by the Issuer not less than 30 days nor more than
60 days after the date on which the Issuer issues a press release announcing
its intention to terminate the conversion rights for the Holders.
"Conversion Price" shall have the meaning set forth in Section 6.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Current Market Price" means, for any day the last reported sale
price, regular way, on such day of Common Stock, or, if no sale takes place on
such day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Composite Transactions
Tape, or, if the Common Stock is not listed or admitted to trading on the NYSE
on such day, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, if the Common Stock is listed on a
national securities exchange, or the Nasdaq National Market, or, if the Common
Stock is not quoted or admitted to trading on such quotation system, on the
principal quotation system on which the Common Stock may be listed or admitted
to trading or quoted, or, if not listed or admitted to trading or quoted on any
national securities exchange or quotation system, the average of the closing
bid and asked prices of the Common Stock in the over-the-counter market on the
day in question as reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or, if not so available in such
manner, as furnished by any NYSE member firm selected from time to time by the
Board of Directors for that purpose or, if not so available in such manner, as
otherwise determined in good faith by the Board of Directors.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance
with the Declaration, and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
"Expiration Time" shall have the meaning set forth in Section 6.3(e).
"Extension Period" shall have the meaning set forth in Section 4.1.
"Fundamental Change" means the occurrence of any Transaction or
event in connection with a plan pursuant to which all or substantially all of
the Common Stock shall be exchanged for, converted into, acquired
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for, or constitute solely the right to receive securities, cash, or
other property (whether by means of an exchange offer, liquidation, tender
offer, consolidation, merger, combination, reclassification, recapitalization,
or otherwise), provided, that, in the case of a plan involving more than one
such Transaction or event, for purposes of adjustment of the conversion price,
such Fundamental Change shall be deemed to have occurred when substantially all
of the Common Stock shall be exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash, or other property, but
the adjustment shall be based upon consideration that a holder of Common Stock
received in such Transaction or event as a result of which more than 50% of the
Common Stock shall have been exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash, or other property.
"Global Debenture" shall have the meaning set forth in Section 2.4(a).
"Interest Payment Date" shall have the meaning set forth in Section 2.5(a).
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a).
"Non-Stock Fundamental Change" means any Fundamental Change other
than a Common Stock Fundamental Change.
"Predecessor Debenture" shall mean, of any particular Debenture,
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture, and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.9 of the
Indenture in lieu of a lost, destroyed or stolen Debenture shall be deemed to
evidence the same debt as the lost, destroyed or stolen Debenture.
"Purchased Shares" shall have the meaning set forth in Section
6.3(e).
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the Closing Prices for the common stock
received in such Common Stock Fundamental Change for the 10 consecutive trading
days prior to and including the record date for the determination of the
holders of Common Stock entitled to receive such common stock, or if there is
no such record date, the date on which the holders of Common Stock shall have
the right to receive such common stock, as adjusted in good faith by the Issuer
to appropriately reflect any of the events referred to in Section .6.3.
"Reference Date" has the meaning specified in Section 6.3(c).
"Reference Market Price" initially means $______ (which is an
amount equal to 66 2/3% of the reported last sale price for the Common Stock on
the NYSE Consolidated Transactions Tape on June ____, 1997), and in the event
of any adjustment of the Conversion Price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial Conversion Price of the
Debentures.
"Redemption Date" shall mean, when used with respect to any
Debenture to be redeemed, the date fixed for such redemption by or pursuant to
this Supplemental Indenture.
"Redemption Price" shall have the meaning set forth in Section 3.3.
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"Transaction" shall have the meaning set forth in Section 6.4.
"Trust Agreement" means the Amended and Restated Declaration of
Trust of CMS Energy Trust I , a Delaware statutory business trust, dated as of
June __, 1997.
ARTICLE II.
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized and established a series of unsecured
Securities designated the "____% Convertible Subordinated Debentures due 2027",
limited in aggregate principal amount to $154,500,000 (except as contemplated
in Section 2.3(f)(2) of the Indenture).
SECTION 2.2. Maturity.
The Maturity Date of the Debentures is _____________, 2027.
SECTION 2.3. Form and Payment.
The Debentures shall be issued in fully registered form without
interest coupons and shall be issuable in denominations of $50 and any integral
multiple thereof. Principal and interest on the Debentures issued in
certificated form will be payable, the transfer of such Debentures will be
registrable and such Debentures will be exchangeable for Debentures bearing
identical terms and provisions, at the office or agency of the Trustee in the
Borough of Manhattan, the City of New York; provided, however, that payment of
interest may be made at the option of the Issuer by check mailed to the Holder
at such address as shall appear in the Security Register or by wire transfer to
an account maintained by the Holder. Notwithstanding the foregoing, so long as
the Holder of any Debentures is the Property Trustee, the payment of the
principal of and interest (including Additional Interest and Additional Sums,
if any) on such Debentures held by the Property Trustee will be made at such
place and to such account as may be designated by the Property Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a distribution of Debentures to Holders in
connection with the involuntary or voluntary dissolution, winding up or
liquidation of the Trust,
(i) the Debentures may be presented to the Trustee by the
Property Trustee in exchange for a global Debenture in an aggregate principal
amount equal to the aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the Clearing Agency, or
its nominee, and delivered by the Trustee to the Clearing Agency for crediting
to the accounts of its participants pursuant to the procedures of the
Depositary. The Issuer upon any such presentation, shall execute a Global
Debenture in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. Payments on the Debentures issued as a
Global Debenture will be made to the Depositary; and
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(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures may be presented to the Trustee by the
Property Trustee and any Preferred Security Certificate which represents
Preferred Securities other than Preferred Securities held by the Clearing
Agency or its nominee ("Non Book-Entry Preferred Securities") will be deemed
to represent beneficial interests in Debentures presented to the Trustee by
the Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance at which time such Preferred Security
Certificates will be canceled and a Debenture, registered in the name of the
holder of the Preferred Security Certificate or the transferee of the holder
of such Preferred Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate canceled, will be executed by the Issuer and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be deemed to have
been canceled.
(b) Except as provided in (c) below, a Global Debenture may be
transferred, in whole but not in part, only to another nominee of the
Depositary, or to a successor Depositary selected or approved by the Issuer or
to a nominee of such successor Depositary.
(c) If (i) the Depositary notifies the Company that it is
unwilling or unable to continue as a deposi tary for such Global Debenture and
no successor depositary shall have been appointed within 90 days by the
Company, (ii) the Depositary, at any time, ceases to be a clearing agency
registered under the Exchange Act at which time the Depositary is required to
be so registered to act as such depositary and no successor depositary shall
have been appointed within 90 days by the Company, (iii) the Company, in its
sole discretion, determines that such Global Debenture shall be so exchangeable
or (iv) there shall have occurred an Event of Default with respect to such
Debentures, as the case may be, the Company will execute, and, subject to
Article 2 of the Indenture, the Trustee, upon written notice from the Company
and receipt of a Company Order, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. In addition, upon an Event of
Default or if the Company may at any time determine that the Debenture shall no
longer be represented by a Global Debenture, in such event the Company will
execute, and subject to Section 2.8 of the Indenture, the Trustee, upon receipt
of an Officers' Certificate evidencing such determination by the Company and a
Company Order, will authenticate and make available for delivery the Debentures
in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the exchange of the
Global Debenture for such Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debenture shall be canceled by
the Trustee. Such Debentures in definitive registered form issued in exchange
for the Global Debenture shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debentures to the Depositary for delivery to the
Persons in whose names such Debentures are so registered.
SECTION 2.5. Interest.
(a) Each Debenture 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 (subject to the provisions of Article IV)
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quarterly in arrears on ____________, ____________, ________________ and
____________ of each year (each, an "Interest Payment Date," commencing on
______________, 1997), to the Person in whose name such Debenture or any
predecessor Debenture is registered, at the close of business on the regular
record date for such interest installment, which, in respect of any Debentures
of which the Property Trustee is the Holder or a Global Debenture, shall be the
close of business on the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if the Preferred Securities are no
longer in book-entry only form or, except if the Debentures are held by the
Property Trustee, the Debentures are not represented by a Global Debenture, the
regular record date for such interest installment shall be the fifteenth day of
the month in which the applicable Interest Payment Date occurs.
(b) 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 in such a 90-day period. In
the event that any date on which interest is payable on the Debentures 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 such date. Accrued interest that is not paid on the applicable
interest payment date will bear additional interest on the amount thereof (to
the extent permitted by law) at the stated rate per annum, compounded
quarterly.
(c) In the event that (i) the Property Trustee is the Holder of
all of the Outstanding Debentures, (ii) a Tax Event in respect of the Trust
shall have occurred and be continuing and (iii) the Company shall not have (A)
redeemed the Debentures pursuant to Section 3.7 or 3.8 or (B) terminated the
Trust pursuant to Section 9.2(b) of the Trust Agreement, the Company shall pay
to the Trust (and its permitted successors or assigns under the Trust
Agreement) for so long as the Trust (or its permitted successor or assignee) is
the registered holder of the Debentures, such additional amounts as may be
necessary in order that the amount of distributions (including any Additional
Amounts as defined in the Trust Agreement) then due and payable by the Trust on
the Preferred Securities and Common Securities that at any time remain
outstanding in accord with the terms thereof shall not be reduced as a result
of any Additional Taxes (the "Additional Sums"). Whenever in this Indenture or
the Debentures there is a reference in any context to the payment of principal
of or interest on the Debentures, such mention shall be deemed to include
mention of the payments of the Additional Sums provided for in this paragraph
to the extent that, in such context, Additional Sums are, were or would be
payable in respect thereof pursuant to the provisions of this paragraph and
express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made, provided, however,
that the extension of an interest payment period pursuant to Section 4.1 or the
Debentures shall not extend the payment of any Additional Sums that may be due
and payable during such interest payment period.
ARTICLE III.
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 3.1 Election to Redeem; Notice to Trustee. The election of the
Issuer to redeem any Debentures shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer, the
Issuer shall, not less than 45 days prior to the date fixed for redemption
(unless a shorter notice
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shall be satisfactory to the Trustee), notify the Trustee in writing of
such date and of the principal amount of Debentures to be redeemed.
SECTION 3.2 Selection of Debentures to Be Redeemed. If less than all the
Debentures are to be redeemed, the particular Debentures to be redeemed shall
be selected not more than 45 days prior to the Redemption Date by the Trustee
from the Outstanding Debentures not previously called for redemption, by lot or
by such other method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the principal
amount of the Debentures Outstanding, provided that the unredeemed portion of
the principal amount of the Debentures be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for the Debentures.
The Trustee shall promptly notify the Issuer in writing of the Debentures
selected for partial redemption and the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debenture which has been or is to be
redeemed. If the Issuer shall so direct, Debentures registered in the name of
the Issuer, any Affiliate or any Subsidiary thereof shall not be included in
the Debentures selected for redemption.
SECTION 3.3 Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not later than the thirtieth day, and
not earlier than the sixtieth day, prior to the date fixed for redemption, to
each Holder of Debentures to be redeemed, at the address of such Holder as it
appears in the Securities Register.
With respect to Debentures to be redeemed, each notice of redemption
shall state:
(a) the Redemption Date;
(b) the redemption price at which the Debentures are to be
redeemed (the "Redemption Price");
(c) if less than all Outstanding Debentures are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Debentures to be redeemed (including, if
relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will become
due and payable upon each such Debenture or portion thereof, and that upon
deposit with the Paying Agent interest thereon, if any, shall cease to accrue
on and after the Redemption Date;
(e) the place or places where the Debentures are to be surrendered
for payment of the redemption price at which the Debentures are to be redeemed;
and
(f) that a Holder of Debentures who desires to convert Debentures
called for redemption must satisfy the requirements for conversion contained
in the Debentures, the then existing conversion price or rate, and the date
and time when the option to convert shall expire.
Notice of redemption of Debentures to be redeemed at the election of the
Issuer shall be given by the Issuer or, at the Issuer's request, by the Trustee
in the name and at the expense of the Issuer and shall be irrevocable. The
notice if mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice. In
any case, a failure to give such notice by mail
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or any defect in the notice to the Holder of any Debenture designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debenture.
SECTION 3.4 Deposit of Redemption Price. Prior to 12:00 noon, New York
City time, on the Redemption Date specified in the notice of redemption given
as provided in Section 3.3, the Issuer will deposit with the Trustee or with
one or more Paying Agents (or, if the Issuer is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.2 of the Indenture) an
amount of money sufficient to redeem on the Redemption Date all the Debentures
so called for redemption at the applicable Redemption Price.
If any Debenture called for redemption has been converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Debenture shall (subject to any right of
the Holder of such Debenture or any Predecessor Debenture to receive interest
as provided in the last paragraph of Section 2.7 of the Indenture) be paid to
the Issuer or, if then held by the Issuer, shall be discharged from such trust.
SECTION 3.5 Debentures Payable on Redemption Date. If notice of
redemption has been given as provided in Section 3.3, the Debentures so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, including any accrued interest (and any
Additional Interest) thereon, and from and after such date (unless the Issuer
shall default in the payment of the Redemption Price or any accrued interest on
(including any Additional Interest)) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemption in accordance
with said notice, such Debenture shall be paid by the Issuer at the Redemption
Price, including any accrued interest (and any Additional Interest) to the
Redemption Date.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Debenture.
SECTION 3.6 Debentures Redeemed in Part. In the event of any redemption
in part, the Issuer shall not be required to (i) issue, register the transfer
of or exchange any Debenture during a period beginning at 9:00 a.m. (New York
City time) 15 Business Days before any selection for redemption of Debentures
and ending at 5:00 p.m. (New York City time) on the earliest date in which the
relevant notice of redemption is deemed to have been given to all holders of
Debentures to be so redeemed and (ii) register the transfer of or exchange any
Debentures so selected for redemption, in whole or in part, except for the
unredeemed portion of any Debentures being redeemed in part.
Any Debenture which is to be redeemed only in part shall be surrendered
at the place of payment therefor (with, if the Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Issuer shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Debenture without service charge, a new Debenture or Debentures, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debenture so surrendered. Each Debenture shall be subject to partial
redemption only in the amount of $50 or integral multiples thereof.
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The Debentures are not entitled to the benefit of any sinking or like
fund.
SECTION 3.7 Mandatory Redemption. Upon (i) repayment at maturity or (ii)
as a result of acceleration upon the occurrence of an Event of Default, the
Issuer shall redeem all the Outstanding Debentures at a redemption price equal
to 100% of the principal amount of such Debentures plus any accrued and unpaid
interest, including any Additional Interest, to the date fixed for redemption.
SECTION 3.8 Optional Redemption. Except as set forth below, on and after
____________, ________ and subject to the next succeeding sentence, the Issuer
shall have the right, at any time and from time to time, to redeem the
Debentures, in whole or in part, upon notice given as set forth in Section 3.3
during the twelve-month periods beginning on ___________________ in each of the
following years at the indicated Redemption Price (expressed as a percentage of
the principal amount of the Debentures being redeemed), together with any
accrued but unpaid interest on the portion being redeemed:
Redemption Price Redemption Price
Year (%) of principal amount) Year (% of principal amount)
---- ------------------------ ---- -----------------------
2001 . . . . . . . . . . . . . 2005 . . . . . . . . . . . . . . . . . . . . .
2002 . . . . . . . . . . . . . 2006 . . . . . . . . . . . . . . . . . . . . .
2003 . . . . . . . . . . . . . 2007 and thereafter . . . . . . . . . . . . .
2004 . . . . . . . . . . . . .
The principal amount of the Debentures so redeemed may not, however,
exceed the amount of the proceeds derived, directly or indirectly, by the
Issuer or its Subsidiaries from the issuance and sale of Common Stock within
three years preceding the date fixed for redemption. The Issuer may not redeem
the Debentures in part unless all accrued and unpaid interest has been paid in
full on all outstanding Debentures for all quarterly interest periods
terminating on or prior to the giving of notice of the Redemption Date.
If at any time following the Conversion Expiration Date, less than 5%
of the original aggregate principal amount of the Debentures remains
Outstanding, such Debentures shall be redeemable at the option of the Issuer,
in whole but not in part, at a Redemption Price equal to the principal amount
thereof, plus any accrued and unpaid interest.
Upon the occurrence of a Tax Event, the Issuer shall have the right,
upon not less than 30 nor more than 60 days' notice, to redeem the Debentures
in whole or in part, for cash upon the later of (i) 90 days following the
occurrence of such Tax Event or (ii)_______________, __ _____, at a Redemption
Price equal to the principal amount of such Debentures plus any accrued and
unpaid interest, including Additional Interest, to the date fixed for such
redemption.
SECTION 3.9 Exchange of Trust Securities for Debentures.
(a) At any time, the Issuer shall have the right to
terminate the Trust and cause the Debentures to be distributed to the holders
of the Preferred Securities in liquidation of the Trust after satisfaction of
liabilities to creditors of the Trust as provided by applicable law.
(b) If a Special Event in respect of the Trust shall
occur, the Issuer shall give the Property Trustee notice of the same. If a
Special Event in respect of the Trust shall occur and be continuing, the Trust
Agreement requires the Property Trustee to direct the Conversion Agent (as
defined in the Trust Agreement)
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to exchange all outstanding Trust Securities for the Debentures having a
principal amount equal to the aggregate liquidation amount of the Trust
Securities to be exchanged with accrued interest in an amount equal to any
unpaid distributions (including any Additional Amounts) on the Trust Securities
provided that, in the case of a Tax Event, the Issuer shall have the right to
direct the Property Trustee that less than all, or none of the Trust Securities
be so exchanged (i) if and for so long as the Issuer shall have elected to pay
any Additional Sums such that the net amounts received by holders of the Trust
Securities not so exchanged in respect of distributions are not reduced as a
result of such Tax Event, and shall not have revoked any such election or failed
to make such payments or (ii) if the Issuer shall instead elect to redeem the
Debentures, in whole or in part, in the manner set forth in Section 3.8.
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Deferrals of Interest Payment Dates. The Company shall have
the right, at any time during the term of the Debentures, so long as no Event
of Default has occurred and is continuing, from time to time to extend the
interest payment period for the Debentures for up to 20 consecutive quarters
with respect to each deferral period (each, an "Extension Period"), during
which period the Company shall have the right to not make payments on interest
on any interest payment date, and at the end of such Extension Period the
Company shall pay all interest then accrued and unpaid thereon (together with
Additional Interest thereon, if any, at the rate specified for the Debentures
to the extent permitted by applicable law); provided that no such Extension
Period shall exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Debentures. Upon termination of any Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest then
due, the Company may select a new Extension Period, subject to the above
requirements. No interest including Additional Interest, if any, shall be due
and payable during an Extension Period, except at the end thereof. The Company
shall give the Trustee, the Property Trustee and the Administrative Trustees
notice of its selection of such Extension Period at least one Business Day
prior to the earlier of (i) the record date for the date the distributions on
the Preferred Securities of the Trust (or if no, Preferred Securities are
outstanding, for the date interest on the Debentures) would have been payable
except for the election to begin such Extension Period and (ii) the date the
Property Trustee (or, if no Preferred Securities are outstanding, the Trustee)
is required to give notice to New York Stock Exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities (or, if
no Preferred Securities are outstanding, to the holders of such Debentures) of
such record date, but in any event not less than one Business Day prior to such
record date. Such notice shall specify the period selected.
The Trustee shall promptly give notice of the Company's selection of
such Extension Period to the Holders of the outstanding Debentures.
The limitations set forth in Section 3.5 of the Indenture shall apply
during any Extension Period.
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ARTICLE V.
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Property Trustee and in connection with the sale of the Trust
Securities by the Trust, the Issuer, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and the Pricing Agreements, and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 6.6 of the Indenture;
(b) pay all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and expenses
of the Property Trustee and the Delaware Trustee, 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);
(c) 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.
ARTICLE VI
CONVERSION OF DEBENTURES
SECTION 6.1 Conversion Rights. Subject to and upon compliance with the
provisions of this Article, the Debentures are convertible, at the option of
the Holder, at any time prior to the Conversion Expiration Date, into fully
paid and nonassessable shares of Common Stock of the Issuer at an initial
conversion rate of ______ shares of Common Stock for each $50 in aggregate
principal amount of Debentures (equal to a conversion price of $______ per
share of Common Stock), subject to adjustment as described in this Article 13
of the Indenture (as adjusted the "Conversion Price"). A Holder of Debentures
may convert any portion of the principal amount of the Debentures into that
number of fully paid and nonassessable shares of Common Stock (calculated as to
each conversion to the nearest 1/100th of a share) obtained by dividing the
principal amount of the Debentures to be converted by the Conversion Price. In
case a Debenture or portion thereof is called for redemption, such conversion
right in respect of the Debenture or portion so called shall expire at the
close of business on the Business Day immediately preceding the corresponding
Redemption Date, unless the Issuer defaults in making the payment due upon
redemption.
SECTION 6.2 Expiration of Conversion Rights.
(a) On and after ________________, the Issuer may, at its
option, cause the conversion rights of Holders of Debentures to expire;
provided, however, that the Issuer may exercise this option only if for 20
trading days within any period of 30 consecutive trading days, including the
last trading day of such period,
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the Current Market Price of Common Stock exceeds 115% of the Conversion
Price of the Debentures, subject to adjustment as described in this Section.
(b) In order to exercise its option to terminate the
conversion rights of the Debentures, the Issuer must issue a press release for
publication on the Dow ▇▇▇▇▇ News Service announcing the Conversion Expiration
Date prior to the opening of business on the second trading day after any
period in which the condition in Section 6.2(a) has been met, but in no event
prior to ________________. The press release shall announce the Conversion
Expiration Date (which may not occur sooner than 30 nor more than 60 days after
the Issuer issues the press release announcing its intention to terminate the
conversion rights of the Debentures) and provide the current Conversion Price
and Current Market Price of Common Stock, in each case as of the close of
business on the trading day next preceding the date of the press release.
Conversion rights will terminate at the close of business on the Conversion
Expiration Date.
(c) In addition to issuing the press release referred to
in the preceding paragraph the Issuer or at the Issuer's request, the Property
Trustee, shall send notice of the expiration of conversion rights by
first-class mail to the Holders of the Debentures not more than four Business
Days after the Issuer issues the press release. Such mailed notice of the
expiration of the conversion rights of the Holders shall state: (i) the
Conversion Expiration Date; (ii) the Conversion Price of the Debentures and
the Current Market Price of the Common Stock, in each case as of the close of
business on the Business Day next preceding the date of the notice of
expiration of the conversion rights of the Holders; (iii) the place or places
at which Debentures may be surrendered prior to the Conversion Expiration Date
for certificates representing shares of Common Stock; and (iv) such other
information or instructions as the Issuer deems necessary or advisable to
enable a Holder to exercise its conversion right hereunder. No defect in the
notice of expiration of the conversion rights of the Holders or in the mailing
thereof with respect to any Debentures shall affect the validity of such notice
with respect to any other Debenture. As of the close of business on the
Conversion Expiration Date, the Debenture shall no longer be convertible into
Common Stock. If the Issuer does not exercise its option to terminate the
conversion rights of the Holders of the Debentures, the Conversion Expiration
Date with respect to the Debentures will be the close of business two Business
Days preceding the date set for redemption of the Debentures upon the mandatory
redemption or Maturity Date of the Debentures.
SECTION 6.3 Conversion Price Adjustments. The conversion price shall
be subject to adjustment (without duplication) from time to time as follows:
(a) In case the Issuer shall, while any of the Debentures
are outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its shares of
Common Stock any shares of capital stock of the Issuer, the conversion
privilege and the Conversion Price in effect immediately prior to such action
shall be adjusted so that the Holder of any Debentures thereafter surrendered
for conversion shall be entitled to receive the number of shares of capital
stock of the Issuer which he would have owned immediately following such action
had such Debentures been converted immediately prior thereto. An adjustment
made pursuant to this subsection (a) shall become effective immediately after
the record date in the case of a dividend or other distribution and shall
become effective immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date if a
record date shall have been established for such event). If, as a result of an
adjustment made pursuant to this subsection (a), the Holder of any Debenture
thereafter surrendered for conversion shall become entitled to receive shares
of two or more classes or series of capital stock of the Issuer, the Board of
Directors (whose determination shall be conclusive and shall be
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described in a Board Resolution filed with the Trustee) shall determine
the allocation of the adjusted Conversion Price between or among shares of such
classes or series of capital stock. In the event that such dividend,
distribution, subdivision, combination or issuance is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such record date had not been fixed.
(b) In case the Issuer shall, while any of the Debentures
are Outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the Current Market Price per share of Common Stock on the
record date mentioned below, the Conversion Price for the Debentures shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would purchase
at such Current Market Price, and of which the denominator shall be the number
of shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such rights or warrants. For the purposes of this subsection, the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Issuer. The Issuer shall not issue any rights or warrants
in respect of shares of Common Stock held in the treasury of the Issuer. In
case any rights or warrants referred to in this subsection in respect of which
an adjustment shall have been made shall expire unexercised within 45 days
after the same shall have been distributed or issued by the Issuer, the
Conversion Price shall be readjusted at the time of such expiration to the
Conversion Price that would have been in effect if no adjustment had been made
on account of the distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subparagraph, in
case the Issuer shall, by dividend or otherwise, distribute to all holders of
its Common Stock evidences of its indebtedness, shares of any class or series
of capital stock, cash or assets (including securities, but excluding any
rights or warrants referred to in subparagraph (b), any dividend or
distribution paid exclusively in cash and any dividend or distribution referred
to in subparagraph (a) of this Section 6.3), the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subparagraph (c) by a fraction
of which the numerator shall be the Current Market Price per share of the
Common Stock on the date fixed for the payment of such distribution (the
"Reference Date") less the fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors), on the Reference Date, of the
portion of the evidences of indebtedness, shares of capital stock, cash and
assets so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock,
such reduction to become effective immediately prior to the opening of business
on the day following the Reference Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such
dividend or distribution had not occurred. For purposes of this subparagraph
(c), any dividend or distribution that includes shares of Common Stock or
rights or warrants to subscribe for or purchase shares of Common Stock shall be
deemed instead to be (i) a dividend or distribution of the evidences of
indebtedness, shares of capital stock, cash or assets other than such shares of
Common Stock or such rights or warrants (making any Conversion Price reduction
required by this subparagraph (c)) immediately followed by (ii) a dividend or
distribution of such shares of Common Stock or such rights or warrants (making
any further conversion price reduction required by subparagraph (a) or (b)),
except (A) the Reference
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Date of such dividend or distribution as defined in this subparagraph
shall be substituted as (x) "the record date in the case of a dividend or other
distribution," and (y) "the record date for the determination of stockholders
entitled to receive such rights or warrants" and (z) "the date fixed for such
determination" within the meaning of subparagraphs (a) and (b) and (B) any
shares of Common Stock included in such dividend or distribution shall not be
deemed outstanding for purposes of computing any adjustment of the conversion
price in subparagraph (a).
(d) In case the Issuer shall pay or make a dividend or
other distribution on its Common Stock exclusively in cash (excluding all
regular cash dividends, if the annualized amount thereof per share of Common
Stock does not exceed 12.5% of the current market price per share of the Common
Stock on the trading day immediately preceding the date of declaration of such
dividend), the Conversion Price shall be reduced so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction contemplated by
this subparagraph (d) by a fraction of which the numerator shall be the Current
Market Price per share of the Common Stock on the date fixed for the payment of
such distribution less the amount of cash so distributed (excluding that
portion of such distribution that does not exceed 12.5% of the Current Market
Price per share, determined as provided above) applicable to one share of
Common Stock and the denominator shall be such Current Market Price per share
of the Common Stock, such reduction to become effective immediately prior to
the opening of business on the day following the date fixed for the payment of
such distribution; provided, however, that in the event the portion of the cash
so distributed applicable to one share of Common Stock is equal to or greater
than the Current Market Price per share of the Common Stock on the record date
mentioned above (excluding that portion of such distribution that does not
exceed 12.5% of the Current Market Price per share, determined as provided
above), in lieu of the foregoing adjustment, adequate provision shall be made
so that each Holder of shares of Debentures shall have the right to receive
upon conversion the amount of cash such Holder would have received had such
Holder converted each share of the Debentures immediately prior to the record
date for the distribution of the cash (less that portion of such distribution
that does not exceed 12.5% of the Current Market Price per share, determined as
provided above). In the event that such dividend or distribution is not so
paid or made, the Conversion Price shall again be adjusted to be the conversion
price which would then be in effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an
odd-lot offer) made by the Issuer or any Subsidiary of the Issuer for all or
any portion of the Common Stock shall expire and such tender or exchange offer
shall involve the payment by the Issuer or such [Restricted] Subsidiary of
consideration per share of Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors) at the
last time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer (as it shall have been amended) that exceeds 110%
of the Current Market Price per share of the Common Stock on the trading day
next succeeding [Dthe Expiration Time, the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this subparagraph (e) by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) at the Expiration Time (including the
Purchased Shares) (as defined below) multiplied by the Current Market Price per
share of the Common Stock on the Trading Day next succeeding the Expiration
Time and the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged
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") (excluding
that portion of such consideration that does not exceed 110% of the Current
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Market Price per share) and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) at the Expiration Time and
the Current Market Price per share of the Common Stock on the trading day next
succeeding the Expiration Time, such reduction to become effective immediately
prior to the opening of business on the day following the Expiration Time. In
the event that such tender or exchange offer is not so made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(f) The Issuer shall have the right to reduce from time
to time the Conversion Price by any amount selected by the Issuer for any
period of at least 30 days, provided, that Issuer shall give at least 15 days'
notice of such reduction to the Trustee and the Property Trustee. The Issuer
may, at its option, make such reductions in the Conversion Price, in addition
to those set forth above in Section 6.3(a), as the Board of Directors deems
advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes. No
adjustment of the Conversion Price will be made upon the issuance of any shares
of Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on securities of the Issuer and
the investment of additional optional amounts in shares of Common Stock under
any such plan, or the issuance of any shares of Common Stock or options or
rights to purchase such shares pursuant to any present or future employee
benefit plan or program of the Issuer or pursuant to any option, warrant,
right, or exercisable, exchangeable or convertible security which does not
constitute an issuance to all holders of Common Stock of rights or warrants
entitling holders of such rights or warrants to subscribe for or purchase
Common Stock at less than the Current Market Price. There shall also be no
adjustment of the Conversion Price in case of the issuance of any Common Stock
(or securities convertible into or exchangeable for Common Stock), except as
specifically described above.
(g) If any action would require adjustment of the
Conversion Price pursuant to more than one of the provisions described above,
only one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest absolute value to the Holder of the Debentures.
SECTION 6.4 Fundamental Change. In the event that the Issuer is a party
to any transaction (including, without limitation, a merger other than a merger
that does not result in a reclassification, conversion, exchange or
cancellation of Common Stock), consolidation, sale of all or substantially all
of the assets of the Issuer, recapitalization or reclassification of Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or combination
of Common Stock) or any compulsory share exchange (each of the foregoing being
referred to as a "Transaction"), in each case, as a result of which shares of
Common Stock shall be converted into the right to receive, or shall be
exchanged for, (i) in the case of any Transaction other than a Transaction
involving a Common Stock Fundamental Change (and subject to funds being legally
available for such purpose under applicable law and the time of such
conversion), securities, cash or other property, each Debenture shall
thereafter be convertible into the kind and, in the case of a Transaction which
does not involve a Fundamental Change, amount of securities, cash and other
property receivable upon the consummation of such Transaction by a holder of
that number of shares of Common Stock into which a Debenture was convertible
immediately prior to such Transaction, or (ii) in the case of a Transaction
involving a Common Stock Fundamental Change, common stock, each Debenture shall
thereafter be convertible (in the manner described herein) into common stock of
the kind received by holders of Common Stock (but in each case after giving
effect to any adjustment discussed in paragraphs (b) and (c) relating to a
Fundamental Change if such Transaction constitutes a Fundamental Change). The
holders of Debentures or Preferred Securities will have no voting rights with
respect to any Transaction described in this section.
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(a) If any Fundamental Change occurs, then the Conversion
Price in effect will be adjusted immediately after such Fundamental Change as
described in paragraph (c) below. In addition, in the event of a Common Stock
Fundamental Change, each Debenture shall be convertible solely into common
stock of the kind received by holders of Common Stock as a result of such
Common Stock Fundamental Change.
(b) The Conversion Price in the case of any Transaction
involving a Fundamental Change will be adjusted immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the Conversion Price
of the Debentures will thereupon become the lower of (A) the Conversion
Price in effect immediately prior to such Non-Stock Fundamental Change, but
after giving effect to any other prior adjustments, and (B) the result
obtained by multiplying the greater of the Applicable Price or the then
applicable Reference Market Price by a fraction of which the numerator will
be $50 and the denominator will be (x) the amount of the redemption price
for the Debenture if the redemption date were the date of such Non-Stock
Fundamental Change (or, for the period commencing on the first date of
original issuance of the Debentures and through_____________, 1998, and the
twelve-month periods commencing _______________, 1998, ___________, 1999,
_____________, 2000, and ____________, 2001, the product of __________,
_________, ________ and _________, respectively, multiplied by $50) plus (y)
any then-accrued and unpaid interest on the Debentures; and
(ii) in the case of a Common Stock Fundamental Change, the Conversion
Price of the Debentures in effect immediately prior to such Common Stock
Fundamental Change, but after giving effect to any other prior adjustments,
will thereupon be adjusted by multiplying such Conversion Price by a
fraction of which the numerator will be the Purchaser Stock Price and the
denominator will be the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which (A) 100% of the value of
the consideration received by a holder of Common Stock is common stock of
the successor, acquirer, or other third party (and cash, if any, is paid
only with respect to any fractional interests in such common stock resulting
from such Common Stock Fundamental Change) and (B) all of the Common Stock
will have been exchanged for, converted into, or acquired for common stock
(and cash with respect to fractional interests) of the successor, acquirer,
or other third party, the Conversion Price of the Debentures in effect
immediately prior to such Common Stock Fundamental Change will thereupon be
adjusted by multiplying such Conversion Price by a fraction of which the
numerator will be one and the denominator will be the number of shares of
common stock of the successor, acquirer, or other third party received by a
holder of one share of Common Stock as a result of such Common Stock
Fundamental Change.
SECTION 6.5 Prior Notice of Certain Events. In case:
(a) the Company shall (i) declare any dividend (or any
other distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash that would not require
an adjustment pursuant to Section 6.3(c) or (d) or (ii) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 6.3(e);
(b) the Company shall authorize the granting to all
holders of Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or series or of any other rights or warrants;
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(c) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value),
or of any consolidation or merger to which the Company is a party and for which
approval of stockholders of the Company shall be required, or of the sale or
transfer of all or substantially all of the assets of the Company or of any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or other property; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall (1) if any Preferred Securities are outstanding under
the Trust Agreement, cause to be filed with the transfer agent for the
Preferred Securities, and shall cause to be mailed to the holders of record of
the Preferred Securities, at their last addresses as they shall appear upon the
stock transfer books of the Trust or (2) shall cause to be mailed to all
Holders at their last addresses as they shall appear in the Security Register,
at least 15 days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record (if any) is to be
taken for the purpose of such dividend, distribution, rights or warrants or, if
a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights or warrants are
to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, share exchange, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice).
ARTICLE VII.
SUBORDINATION
SECTION 7.1. Agreement to Subordinate.
The Issuer covenants and agrees, and each Holder of Debentures
issued hereunder, by such Holder's acceptance thereof likewise covenants and
agrees, that pursuant to Section 2.3(f)(9) of the Indenture all Debentures
shall be issued as Subordinated Securities subject to the provisions of Article
Twelve of the Indenture and this Article VII; and each Holder of a Debenture by
its acceptance thereof accepts and agrees to be bound by such provisions.
ARTICLE VIII.
COVENANT TO LIST ON EXCHANGE
SECTION 8.1. Listing on an Exchange.
In connection with the distribution of the Debentures to the
holders of the Preferred Securities upon a Dissolution Event, the Issuer will
use its best efforts to list such Debentures on the New York Stock Exchange or
on such other exchange as the Preferred Securities are then listed.
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ARTICLE IX.
FORM OF DEBENTURES
SECTION 9.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication
to be endorsed thereon are to be substantially in the following forms and the
Debentures shall have such additional terms as may be set forth in such form:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURES, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO.
CMS ENERGY CORPORATION
___% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2027
CMS Energy Corporation, a Michigan corporation (the "Issuer",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________, or
registered assigns, the principal sum of _____________ Dollars ($___________)
on _________, ____, and to pay interest on said principal sum from
____________, 1997, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
___________, ________, ____________ and ____________ of each year commencing
___________ at the rate of ___% per annum until the principal hereof shall have
become due and payable, and on any overdue principal and premium, if any, and
(without duplication 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 compounded quarterly. The amount of interest payable on
any Interest
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Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable
on this Debenture is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day that 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 such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, which shall be the close of business on the
business day next preceding such Interest Payment Date. [IF PURSUANT TO THE
PROVISIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A
GLOBAL DEBENTURE -- which shall be the close of business on the 15th day of the
month in which such Interest Payment Date occurs.] Payment of the principal
of (and premium, if any) and interest on this Debenture will be made [Insert,
if a global security is issued - to the Depositary Trust Company or its
nominee] [Insert if securities in definitive form are issued - at the office or
agency of the Paying Agent maintained for that purpose in the United States],
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts provided,
however, that at the option of the Issuer payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Securities Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Securities Register. If and to the
extent the Issuer shall default in the payment of the interest due on such
Interest Payment Date, interest shall be paid to the person in whose name this
Debenture is registered at the close of business on a subsequent record date
(which shall not be less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of this Debenture not less than 15 days preceding
such subsequent Record Date. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee in the Borough of Manhattan, the City of New York maintained for that
purpose in any coin or currency of the United States of America that 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
Issuer by check mailed to the registered Holder at such address as shall appear
in the Security Register or by wire transfer to an account maintained by the
Holder. Notwithstanding the foregoing, so long as the Holder of this Debenture
is the Property Trustee, the payment of the principal of (and premium, if any)
and interest on this Debenture will be made at such place and to such account
as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each Holder hereof, by his
or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
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The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be executed.
Dated
CMS Energy Corporation
By:
Name:
Title
Attest:
By:
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described in the
within-mentioned Indenture.
[ ]
________________________________
as Trustee
By
Authorized Officer
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of
the Issuer (herein sometimes referred to as the "Debentures"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of _______, 1997, duly executed and
delivered between the Issuer and The Bank of New York, as Trustee (the
"Trustee"), as supplemented by the First Supplemented Indenture dated as of
_______, 1997, between the Issuer and the Trustee (the "First Supplemental
Indenture"; and the Indenture, as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the
Debentures. By the terms of the
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Indenture, the Debentures are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as provided in
the Indenture. This series of Debentures is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
The Issuer shall have the right to redeem this Debenture at the
option of the Issuer, without premium or penalty, in whole or in part at any
time on or after ___________, ____ or at any time in certain circumstances upon
the occurrence of a Special Event, at a redemption price set forth in Article
III of the First Supplemental Indenture.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this Debenture
shall be exchangeable for Preferred Securities in accordance with Section 3.9
or, in certain circumstances, redeemable by the Issuer in accordance with
Section 3.8.
Subject to the terms and conditions set forth in Article 6 of the
First Supplemental Indenture and Article 13 of the Indenture, this Debenture is
convertible, at the option of the Holder, hereof into shares of Common Stock.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures 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.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures and other Indenture securities of
each series affected at the time Outstanding and affected (voting as one
class), as defined in the Indenture, to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that the Issuer and the Trustee may not, without the consent of the
Holder of each Debenture then Outstanding and affected thereby: (a) change the
time of payment of the principal (or any installment) of any Debenture, or
reduce the principal amount thereof, or reduce the rate or change the time of
payment of interest thereon, or impair the right to institute suit for the
enforcement of any payment on any Debenture when due or (b) reduce the
percentage in principal amount of the Debentures, the consent of whose Holders
is required for any such modification or for any waiver provided for in the
Indenture. The Indenture also contains provisions providing that prior to the
acceleration of the maturity of any Debenture or other securities outstanding
under the Indenture, the Holders of a majority in aggregate principal amount of
Debentures of and other Securities Outstanding under the Indenture with respect
to which a default or/an Event of Default shall have occurred and be continuing
(voting as one class) may on behalf of the Holders of all such affected
Securities (including the Debentures) waive any past default and its
consequences, except a default or an Event of Default in respect of a covenant
or provision of the Indenture or of any Debenture or other Security which
cannot be modified or amended without the consent of the Holder of each
Debenture or other Security affected. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Debenture and of any Debenture issued in exchange
herefor 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 Debenture.
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No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Issuer shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of such
Debenture for up to 20 consecutive quarters with respect to each deferral
period (each such deferral period an "Extension Period"), during which periods
the Issuer shall have the right not to make payments of interest on any
Interest Payment Date, and at the end of which the Issuer shall pay all
interest then accrued and unpaid (together with Additional Interest and
Liquidated Damages, if any, thereon to the extent permitted by applicable law).
Prior to the termination of any such Extension Period, the Issuer may further
extend the interest payment period, provided that no Extension Period shall
exceed 20 consecutive quarters or extend beyond the Stated Maturity of this
Debenture. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then
due, the Issuer may elect to begin a new Extension Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Issuer, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such
transfer, but the Issuer 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
Debenture, the Issuer, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Debenture 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 premium, if any, and interest due hereon and for all other
purposes, and neither the Issuer nor the Trustee nor any paying agent nor any
Security Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Issuer or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
Debentures of this series so issued are issuable only in registered
form without coupons in denominations of $50 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Debentures of this series so issued are exchangeable for a
like aggregate principal amount of Debentures of this series in authorized
denominations, as requested by the Holder surrendering the same.
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All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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NOTICE OF CONVERSION
To: CMS Energy Corporation
The undersigned owner of this Debenture hereby irrevocably exercises
the option to convert this Debenture, or the portion below designated, into
Common Stock of CMS ENERGY CORPORATION in accordance with the terms of the
Indenture referred to in this Debenture, and directs that the shares issuable
and deliverable upon conversion, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Date: ____________, ____
in whole __
in part ___ Portions of Debenture to be
converted ($50 or integral
multiples thereof):
$_________________
__________________________________
Signature (for conversion only)
Please Print or Typewrite
Name and Address, Including
Zip Code, and Social
Security or Other
Identifying Number
_______________________________
_______________________________
_______________________________
Signature Guarantee:1 ______________________
____________________
1 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) in such other guarantee programs acceptable to the
Trustee.
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SECTION 9.2. Form of Assignment. The form of Assignment shall be as follows:2
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(I) or (We) assign and transfer this Security to
________________________________________________________________________________
(Inset assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________ agent to transfer this
Debenture on the books of the Issuer. The agent may substitute another to act
for him.
Your Signature:
______________________________
______________________________
(Sign exactly as your name
appears on the other side of
this Security)
Date: ____________________
Signature Guarantee:3________________________________
ARTICLE X.
ORIGINAL ISSUE OF DEBENTURES
SECTION 10.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $___________ may,
upon execution of this First Supplemental Indenture, be executed by the Issuer
and delivered to the Trustee for authentication, and the
---------------
(2) Or in the form provided in Section 6.14 in the event that a separate
Autheticating Agent is appointed pursuant thereto.
3Signature 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) in
such other guarantee programs acceptable to the Trustee.
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Trustee shall thereupon authenticate and deliver said Debentures to or upon
the written order of the Issuer, in accordance with Section 2.4 of the
Indenture.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 11.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Issuer and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 11.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be deemed
to be a contract made under the internal laws of the State of Michigan, and for
all purposes shall be construed in accordance with the laws of said State,
provided, however, that the rights, duties and obligations of the Trustee are
governed and construed in accordance with the laws of the State of New York.
SECTION 11.4. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
SECTION 11.5. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgements and as of the day and year first above written.
CMS Energy Corporation
By: ____________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
[Seal]
Attest:
By:______________________
The Bank of New York as Trustee
By: ___________________________________________
Name:
Title:
Attest:
By:______________________
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STATE OF MICHIGAN )
)ss.
COUNTY OF ▇▇▇▇▇ )
On the ______ day of __________, 1997, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at Ann Arbor, Michigan; that he is Senior Vice President, Treasurer and
Chief Financial Officer of CMS Energy Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate; that it was so affixed by authority of the Board of Directors of
said corporation; and that he signed his name thereto by like authority.
[Notarial Seal]
______________________________________
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Notary Public, ▇▇▇▇▇ County, Michigan
My Commission Expires: March 7, 2002
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